Galuak v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 146 Appeal from: File number(s): Judgment of: BURLEY, O'CALLAGHAN AND HORAN JJ Date of judgment: 14 November 2024 Catchwords: CONSTITUTIONAL LAW – judicial power of the Commonwealth – whether s 34(2)(b)(ii) of the Australian Citizenship Act 2007 (Cth) is valid in its application to the appellant – where Minister revoked appellant's Australian citizenship following his conviction for an offence committed before he became an Australian citizen – where appellant was a child at the time of application for and grant of Australian citizenship – where no statutory requirement that the appellant be of "good character" as precondition to becoming an Australian citizen – whether certificate of Australian citizenship was granted to appellant under Australian Citizenship Act 1948 (Cth) – whether exercise of power under s 32(2)(b)(ii) to revoke appellant's Australian citizenship contrary to Ch III of Constitution – whether application of s 32(2)(b)(ii) to appellant is reasonably capable of being seen as necessary for a legitimate non-punitive purpose – whether purpose of protecting integrity of process of naturalisation – Jones v Commonwealth [2023] HCA 34; 97 ALJR 936 distinguished – Held: s 34(2)(b)(ii) is invalid in its application to the appellant – declarations and consequential orders made MIGRATION – appeal from a decision of primary judge – judicial review of decision by Administrative Appeals Tribunal to affirm decision under s 501CA(4) of Migration Act 1958 (Cth) not to revoke cancellation of appellant's ex-citizen visa – challenge to validity of earlier decisions by Minister and by Tribunal to revoke Australian citizenship –whether Minister and Tribunal failed to have regard to consequences of subsequent cancellation of ex-citizen visa – challenge to validity of earlier decision under s 501(3A) to cancel "Class AQ Subclass 150 Former Citizen visa" – where appellant never held Class AQ visa – whether delegate purported to cancel visa that did not exist Constitution, s 51(xix) Acts Interpretation Act 1901 (Cth), s 15A Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth), Sch 3, items 6(3), 7(2), (7), 8(1)-(3) Australian Citizenship Act 1948 (Cth), ss 13(1), (9), (9B), (11), 14A, 14B, 14C, 15(6), 21(1)(a)(ii), 46 Legislation: Australian Citizenship Act 2007 (Cth), ss 21(2)-(5), 24(1)-(2), (6), 25(1)-(2), (4), 26, 27, 28(1), (3)-(4), 34(2)-(5) Migration Act 1958 (Cth), ss 35, 501(3A), 501CA(4) Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth) Australian Citizenship Regulations 1960 (Cth), reg 10, Sch 2 Australian Citizenship Regulations 2007 (Cth), reg 10, Sch 2 AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 304 FCR 586 Alexander v Minister for Home Affairs (2022) 276 CLR 336 Alphapharm Pty Ltd v H Lundbeck A/S (2014) 254 CLR 247 Anderson v Assistant Minister for Immigration and Border Protection [2018] FCA 888 Benbrika v Minister for Home Affairs [2023] HCA 33; 97 ALJR 899 Carr v Finance Corporation of Australia (No 1) (1981) 147 CLR 246 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 EUF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 436 Frugtniet v Secretary, Department of Social Services (2021) 285 FCR 159 Galuak v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 798 Galuak v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCASL 22 Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 Hunter Resources Ltd v Melville (1988) 164 CLR 234 Cases cited: Jones v Commonwealth [2023] HCA 34; 97 ALJR 936 Minister for Immigration and Border Protection v Egan (2018) 261 FCR 451 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Minister for Immigration and Multicultural and Indigenous Affairs v Schwart [2003] FCAFC 229 NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005 Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1 Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165 Sales v Minister for Immigration and Citizenship (2008) 171 FCR 56 Smith-Davidson v Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 871 Tapiki v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 10; 408 ALR 503 TRHL v Minister for Immigration and Border Protection [2015] AATA 803 Trop v Dulles 356 US 86 (1958) WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 463 XJLR v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs (2022) 289 FCR 256 YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40 Division: General Division Registry: Victoria National Practice Area: Number of paragraphs: 174 Date of last submissions: Appellant: 1 July 2024 First Respondent: 15 July 2024 Date of hearing: 14 May 2024 Counsel for the Appellant: Mr A McBeth and Ms E Brumby Solicitor for the Appellant: Victoria Legal Aid Counsel for the Respondents: Mr C Lenehan SC with Ms M Jackson Solicitor for the Respondents: Australian Government Solicitor ORDERS VID 441 of 2022 BETWEEN: JAL MICHAEL GALUAK Appellant MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS AND: First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent order made by: BURLEY, O'CALLAGHAN AND HORAN JJ DATE OF ORDER: 14 November 2024 THE COURT DECLARES THAT: 1. Section 34(2)(b)(ii) of the Australian Citizenship Act 2007 (Cth) is invalid in its operation in respect of the appellant. 2. The decision made by the first respondent on 22 June 2017 purporting to revoke the appellant's Australian citizenship was affected by jurisdictional error and is a nullity. 3. The decision made by the Administrative Appeals Tribunal on 19 July 2018 purporting to affirm the decision to revoke the appellant's Australian citizenship was affected by jurisdictional error and is a nullity. 4. The appellant is an Australian citizen. THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The orders made on 14 July 2022 in proceeding VID 202 of 2021 be set aside, and in lieu thereof it be ordered that: 1. a writ of certiorari issue to quash the decision made on 30 July 2018 by the first respondent purporting to cancel an ex-citizen visa held by the appellant under s 501(3A) of the Migration Act 1958 (Cth); 2. a writ of certiorari issue to quash the decision made on 31 December 2020 by the first respondent under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the original decision referred to in paragraph 2(a); and 3. a writ of certiorari issue to quash the decision made by the Administrative Appeals Tribunal dated 29 March 2021 purporting to affirm the decision referred to in paragraph 2(b). 3. The first respondent pay the appellant's costs of the appeal, as agreed or taxed. 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 challenges the revocation of his Australian citizenship under s 34(2) of the Australian Citizenship Act 2007 (Cth) (2007 Act) and the subsequent cancellation of a visa that he was taken to hold as an "ex-citizen" pursuant to s 35(3) of the Migration Act 1958 (Cth). 2. Each of those decisions was based on the appellant's conviction of rape, for which the appellant was sentenced to a term of imprisonment for five years. While that offence had been committed by the appellant before he was granted Australian citizenship, he was not charged or convicted of the offence until some years later, after he had become an Australian citizen. For reasons that will be explained further below, it is significant that the appellant was a child both at the time that he committed the offence and when he became an Australian citizen. 3. At the heart of this appeal is the question whether s 34(2)(b)(ii) of the 2007 Act validly applies to the appellant. Section 34(2)(b)(ii) confers power on the Minister to revoke a person's Australian citizenship if, at any time after making an application to become an Australian citizen, the person has been convicted of a serious offence that was committed before the person became an Australian citizen, and the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen. 4. The appeal is brought from the primary judge's dismissal of an application for judicial review of a decision made by the Administrative Appeals Tribunal, which affirmed a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs pursuant to s 501CA(4) of the Migration Act refusing to revoke the cancellation of the appellant's visa. The grounds of review included a collateral challenge by the appellant to the exercise of the statutory power to revoke his Australian citizenship, primarily on the basis that the Minister and the Tribunal had failed to take into account the legal consequences of the revocation of his citizenship as mandatory relevant considerations in the exercise of that power. 5. The primary judge concluded that the citizenship revocation decision was not affected by jurisdictional error, that the ex-citizen visa held by the appellant had been validly cancelled notwithstanding a misdescription of the visa in the notice of cancellation, and that the decision not to revoke the visa cancellation was within jurisdiction: Galuak v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 798. 6. The ground has shifted somewhat since the matter was heard by the primary judge. 7. On 8 June 2022, several weeks before the decision below was handed down, the High Court delivered judgment in Alexander v Minister for Home Affairs (2022) 276 CLR 336, in which a majority of the Court held that s 36B of the 2007 Act was invalid in its operation in respect of the plaintiff because it reposed in the Minister for Home Affairs the exclusively judicial function of punishing criminal guilt. 8. In response to the decision in Alexander, the appellant amended his notice of appeal to raise a new ground that was not raised at first instance before the primary judge, namely that s 34(2)(b)(ii) of the 2007 Act is "invalid as an unconstitutional exercise of judicial power" on the basis that the revocation of citizenship in response to criminal conduct by a citizen constitutes punishment which can only be imposed by a Ch III court. 9. The appeal was then adjourned pending the hearing and determination by the High Court of Jones v Commonwealth [2023] HCA 34; 97 ALJR 936, in which the validity of s 34(2)(b)(ii) of the 2007 Act was challenged on similar grounds. On 1 November 2023, the High Court by majority held that s 34(2)(b)(ii) was valid in its application to the plaintiff in that case, essentially because that provision (in contrast to ss 36B and 36D respectively considered in Alexander and Benbrika v Minister for Home Affairs [2023] HCA 33; 97 ALJR 899) was reasonably capable of being seen as necessary for the legitimate non-punitive purpose of protecting the integrity of the naturalisation process. In particular, in circumstances where it was a precondition to the grant of a certificate of Australian citizenship that the Minister be satisfied that the person was "of good character" and where conviction of a serious offence was relevant to the ministerial assessment of that precondition, the Court held that it was not contrary to Ch III of the Commonwealth Constitution to confer on the Minister a power to revoke citizenship if the person was subsequently convicted of a serious offence that had been committed before the grant of citizenship. 10. The appellant further amended his notice of appeal in response to the decision in Jones. The additional ground of appeal now challenges s 34(2)(b)(ii) of the 2007 Act in its application to the appellant who, as a child at the time that he became an Australian citizen, was not subject to a requirement that he must be of "good character" as a statutory prerequisite to the grant of citizenship by conferral. In such circumstances, the appellant seeks to distinguish Jones on the basis that the power to revoke his citizenship based on the commission of a serious offence before he became an Australian citizen is not reasonably capable of being seen as necessary to protect the integrity of the naturalisation process, and is therefore properly characterised as punitive in nature. 11. The appellant also maintains the arguments that he advanced before the primary judge: first, that the Minister and the Tribunal failed to take into account the necessary legal consequences of the exercise of the power to revoke his citizenship, including the mandatory cancellation of his visa and consequent prolonged or indefinite detention pending his removal from Australia; and secondly, that the delegate purported to cancel a visa of a different class to the visa that was actually held by the appellant, and that the cancellation decision is therefore a nullity. 12. Accordingly, the following questions are raised for determination on the present appeal. 13. Is s 34(2)(b)(ii) of the 2007 Act, in its application to the appellant, contrary to Ch III of the Constitution and to that extent invalid? 14. When assessing whether it would be contrary to the public interest for the appellant to remain an Australian citizen for the purposes of s 34(2)(c) of the 2007 Act, were the Minister and the Tribunal required to take into account the legal consequences resulting from the loss of citizenship, including the mandatory cancellation of the appellant's ex-citizen visa and his detention pending removal from Australia? 15. Did the delegate of the Minister purport to cancel a visa that was not in fact held by the appellant? 16. If s 34(2)(b)(ii) of the 2007 Act is not valid in its application to the appellant (Ground 1), or if the power conferred by that provision was not validly exercised by the Minister and the Tribunal (Ground 2), the appellant would still be an Australian citizen, and would neither have held nor needed to hold an ex-citizen visa. Alternatively, if the appellant's visa was not validly cancelled under s 501(3A) of the Migration Act (Ground 3), he would still hold an ex-citizen visa and the decisions made by the delegate and the Tribunal not to revoke the purported cancellation of that visa would themselves be invalid. 17. For the reasons set out below, we conclude that s 34(2)(b)(ii) of the 2007 Act, in its application to the appellant, is contrary to Chapter III of the Constitution and invalid. The decision in Jones, in which a majority of the High Court upheld the validity of s 34(2)(b)(ii) in its application to the plaintiff in that case, can be distinguished from the circumstances of the present appeal. Accordingly, Ground 1 is upheld and the appeal is allowed. 18. However, the other grounds of appeal are dismissed. In deciding whether to affirm the decision to revoke the appellant's Australian citizenship, the Tribunal was not obliged to consider the consequences arising from the cancellation of the ex-citizen visa that the appellant would be taken to hold under the Migration Act. Further, the delegate validly exercised the power to cancel that visa under s 501(3A) of the Migration Act and, notwithstanding the misdescription of the visa class, did not purport to cancel a visa that did not exist. Background 1. While this matter has a lengthy and detailed history, the salient facts, in so far as they bear upon the legal issues raised on appeal, are of relatively limited compass. 2. The appellant was born on 1 August 1993 in Sudan (as it was then known). Together with members of his family, he arrived in Australia in May 2005 as the holder of a Special Humanitarian visa. 3. On 18 June 2007, the appellant's mother lodged an application for the grant of Australian citizenship. The appellant was included in his mother's citizenship application, together with his two younger siblings, as dependent children under the age of 16 years. 4. On or about 22 June 2007, the Department of Immigration and Citizenship prepared a draft letter from the Minister to the appellant's mother to advise that her citizenship application had been approved. The letter stated that "[t]he final step in becoming an Australian citizen is making a Pledge of commitment at a citizenship ceremony" and that she would "not acquire the legal status of an Australian citizen" until she made that pledge. There does not appear to be any direct evidence that this letter was in fact sent to the appellant's mother. 5. The appellant was subsequently invited to attend a citizenship ceremony on 14 November 2007, where she made the pledge of commitment necessary for the conferral of Australian citizenship. The appellant, who was then aged 14, thereupon also acquired Australian citizenship. 6. The appellant was issued with evidence of his Australian citizenship in the form of a certificate dated 14 November 2007, in which the Minister gave notice that the appellant "is an Australian citizen and that citizenship was acquired on 14th November 2007". 7. On 26 June 2015, the appellant was convicted of rape and sentenced to five years' imprisonment. The offence of which the appellant was convicted took place on 8 April 2007, when the appellant was 13 years old and prior to the conferral of his Australian citizenship. 8. On 22 June 2017, the Minister made a decision to revoke the appellant's Australian citizenship pursuant to s 34(2) of the 2007 Act. Upon the making of that decision, assuming its validity, the appellant was taken to hold an "ex-citizen visa" by the operation of s 35 of the Migration Act. An "ex-citizen visa" is a class of permanent visa which authorises the holder to remain in, but not re-enter, Australia. The Minister's decision to revoke the appellant's Australian citizenship was affirmed by the Tribunal on 19 July 2018. 9. On 30 July 2018, a delegate of the Minister made a decision under s 501(3A) of the Migration Act to cancel the "Class AQ Subclass 150 Former Citizen visa" that was said to have been granted to the appellant on 22 June 2017, being the date on which the decision was made to revoke his Australian citizenship. The decision was purportedly made in exercise of the mandatory cancellation power conferred by s 501(3A) based on the appellant's conviction and sentence for the offence of rape, as a result of which he did not pass the character test because of his substantial criminal record within the meaning of s 501(6)(a) and (7)(c). At the time of the delegate's decision, the appellant was serving a sentence of imprisonment on a full-time basis in a custodial institution for that offence. 10. The appellant sought revocation of the decision to cancel his visa. On 31 December 2020, a delegate of the Minister decided not to revoke the visa cancellation decision under s 501CA(4) of the Migration Act. It may be noted in passing that the delegate's statement of reasons referred to the original decision as the cancellation of "the ex-citizen visa held by [the appellant] until 30 July 2018". On 29 March 2021, the Tribunal affirmed the delegate's decision not to revoke the original decision to cancel the appellant's visa. The decision below 1. On 26 April 2021, the appellant commenced proceedings in this Court seeking judicial review of: 2. the decisions of the Minister and the Tribunal to revoke his Australian citizenship under s 34(2) of the 2007 Act; and 3. the decision by the Tribunal to affirm the delegate's decision not to revoke the cancellation of his visa under s 501CA(4) of the Migration Act. 4. If the appellant were successful in his challenge to either the decision to revoke his citizenship or the purported cancellation of his visa (and the subsequent decision not to revoke that purported cancellation), he would not be an unlawful non-citizen and would be entitled to release from immigration detention. 5. Before the primary judge, the appellant challenged the validity of the citizenship revocation decisions on the basis that both the Minister and the Tribunal had failed to have regard to certain legal consequences of the revocation of his citizenship when addressing the public interest or exercising the discretion under s 34(2) of the 2007 Act. The appellant argued that, as a consequence of the revocation of his citizenship, he would face prolonged or indefinite detention and potential removal from Australia following the mandatory cancellation of his ex-citizen visa under s 501(3A) of the Migration Act. The appellant submitted that these were relevant considerations that each of the Minister and the Tribunal was bound to take into account, and that the decision to revoke his citizenship was therefore beyond jurisdiction and a nullity. As he would not have ceased to be an Australian citizen, the appellant submitted that he was not taken to have held an ex-citizen visa and that the purported decisions in relation to the cancellation of that visa under ss 501(3A) and 501CA(4) were also nullities. 6. Alternatively, the appellant challenged the Tribunal's decision to affirm the non-revocation of the cancellation of his visa, on the ground that the original cancellation decision purported to cancel a visa that was not held by him, namely, a "Class AQ Subclass 150 Former Citizen visa". As mentioned above, assuming the validity of the citizenship revocation, the appellant was taken to hold an "ex-citizen visa", being a class of visa created by s 35(1) of the Migration Act. Class AQ Subclass 150 visas had been abolished in July 2000. As a consequence, the appellant contended that the original cancellation decision under s 501(3A) was a nullity and the Tribunal therefore had no jurisdiction to decide not to revoke that decision under s 501CA: see XJLR v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs (2022) 289 FCR 256 at [57]-[59] (Rares J), [95] (Yates J); Tapiki v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 10; 408 ALR 503 at [13] (Perry, Derrington and Thawley JJ). 7. On 14 July 2022, the primary judge dismissed the judicial review application: Galuak v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 798 (J). 8. The primary judge did not consider that either prolonged detention or removal from Australia (including any potential breach of non-refoulement obligations) were direct consequences of the revocation of the appellant's Australian citizenship under s 34(2) of the 2007 Act: J [58]-[59]. Rather, such outcomes were "hypothetical or contingent sequels" to other statutory processes, and were dependent on "multiple variables". Accordingly, those matters were not required to be taken into account when exercising the power conferred by s 34(2) of the 2007 Act: J [67]-[68]. 9. Further, and in any event, the primary judge concluded the Minister and the Tribunal were aware that the appellant would be liable to the cancellation of his ex-citizen visa upon the revocation of his citizenship: J [73]-[74]. The primary judge considered that it had been open to the Minister and the Tribunal to proceed on the basis that such matters, including any implications for the appellant's detention or removal, would be assessed when they arose for consideration under subsequent statutory processes (such as those under s 501CA of the Migration Act): J [88]-[89]. 10. The primary judge concluded that the delegate's decision to cancel the appellant's ex-citizen visa was not affected by jurisdictional error. His Honour found that the delegate "knew exactly what he or she was doing" when cancelling the visa that was granted to the appellant on 22 June 2017 when he ceased to be an Australian citizen, notwithstanding the misdescription of that visa as a "Class AQ Subclass 150 Former Citizen visa": J [117]. Accordingly, the primary judge distinguished the decisions of this Court in cases such as Minister for Immigration and Multicultural and Indigenous Affairs v Schwart [2003] FCAFC 229 and Sales v Minister for Immigration and Citizenship (2008) 171 FCR 56 in which a misapprehension as to the visa held by the non-citizen was held to vitiate a purported decision to cancel a different visa: J [100]-[104]. The grounds of appeal 1. By his further amended notice of appeal dated 16 April 2024, the appellant relies on the following grounds of appeal (omitting particulars). 2. Section 34(2)(b)(ii) of the Citizenship Act is invalid as an unconstitutional exercise of judicial power in its application to the appellant, with the result that the purported decisions to revoke the appellant's Australian citizenship were of no legal effect, and the appellant therefore remained a citizen and held no visa that could be cancelled, such that the Tribunal lacked jurisdiction to conduct the review culminating in the decision dated 29 March 2021. … 1. The primary judge erred in failing to find that the Tribunal lacked jurisdiction to conduct the review culminating in the decision dated 29 March 2021, as the purported decisions to revoke the appellant's Australian citizenship were affected by jurisdictional error and of no legal effect, and the appellant therefore remained a citizen and held no visa that could be cancelled. … 1. Alternatively, the primary judge erred in failing to find that the Tribunal lacked jurisdiction to determine the appellant's application for review pursuant to s 500(1)(ba) of the Migration Act, as no valid decision has been made to cancel the appellant's ex-citizen visa under s 501(3A) of the Migration Act so as to empower the Minister to make a valid decision under s 501CA(4) of the Migration Act 2. The particulars to Ground 1 allege that s 34(2)(b)(ii) of the 2007 Act, in its application to the revocation of the appellant's citizenship by reason of his prior offending, is not reasonably capable of being seen as necessary to protect the integrity of the naturalisation process, because it was not a statutory prerequisite to the grant of citizenship to the appellant that the Minister be satisfied that he was "of good character". In such circumstances, the appellant submits that s 34(2)(b)(ii) of the 2007 Act is properly characterised as punitive, and that it invalidly reposes in the Minister the exclusively judicial function of imposing punishment for criminal offending, contrary to Ch III of the Constitution. Ground 1 turns on the application of the High Court's reasoning in Alexander, Benbrika and Jones to the circumstances of the present case. 3. For completeness, the appellant unsuccessfully sought to remove this ground of appeal to the High Court under s 40 of the Judiciary Act 1903 (Cth): Galuak v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCASL 22. In refusing the application for removal, the High Court stated that the appellant had not identified sufficient reason to warrant interference with the ordinary progression of proceedings in this Court, including the consideration by this Court of the High Court's judgment in Jones. 4. The particulars to Grounds 2 and 3 largely reflect the submissions advanced before the primary judge in support of the corresponding grounds of judicial review at first instance. Ground 2 challenges the Tribunal's decision to affirm the non-revocation of the visa cancellation on the basis of the alleged invalidity of the purported exercise by the Minister's delegate and the Tribunal of the statutory power to revoke the appellant's citizenship under s 34(2)(b)(ii) of the 2007 Act, such that the appellant continues to be an Australian citizen and was never taken to have been issued with an ex-citizen visa. The invalidity is said to arise from an alleged failure by each of the delegate and the Tribunal to have regard to the legal consequences for the appellant of the revocation of his citizenship. Ground 3 challenges the Tribunal's non-revocation decision on the basis of the alleged invalidity of the purported decision under s 501(3A) of the Migration Act to cancel a visa that has never been held by the appellant. Consideration Applicable legislation 1948 Act 1. The Australian Citizenship Act 1948 (Cth) (1948 Act) was in force at the time that the citizenship application was made by the appellant's mother. There is a live issue between the parties as to whether or not the appellant was "granted" Australian citizenship under the 1948 Act. However, it is common ground that Australian citizenship was not acquired by the appellant until 14 November 2007, after the commencement of the 2007 Act, when his mother made the pledge of commitment that was required in order for her and her dependent children to become Australian citizens. 2. Division 2 of Pt III of the 1948 Act dealt with the "Grant of Australian citizenship". Section 13(1) relevantly provided that, upon application in accordance with the approved form, the Minister may "grant a certificate of Australian citizenship" to a person who satisfied the Minister of certain specified criteria, including that the person had attained the age of 18 years and was "of good character": s 13(1)(b), (f). 3. Section 13(9)(a) and (b) of the 1948 Act conferred power on the Minister to grant a certificate of Australian citizenship to a person who had not attained the age of 18 years, or who had attained the age of 18 years but had made the application for citizenship before attaining that age. The power conferred by s 13(9) was not subject to the requirements set out in s 13(1)(a) to (j), including the "good character" requirement contained in s 13(1)(f). However, the power was subject to s 13(11), which prevented the Minister from granting a certificate of Australian citizenship during certain defined periods, including while criminal proceedings were pending in relation to the person, while the person was confined to a prison in Australia or was released on parole, or during certain fixed periods after the person's release from prison following the imposition of certain sentences of imprisonment. 4. Section 13(9B) of the 1948 Act conferred power to grant a certificate of Australian citizenship to a child under 16 years of age: (9B) Subject to subsection (11), the Minister may, in the Minister's discretion, on application in accordance with the approved form, grant a certificate of Australian citizenship to a child if: (a) the child was under 16 at the time of the application; and (b) the application is set out in the same document as an application made under subsection (1) by a responsible parent of the child for the grant of a certificate of Australian citizenship to the responsible parent. Thus, a child under 16 could be included in an application for Australian citizenship made under s 13(1) by a responsible parent of the child. Like the power conferred by s 13(9), the power conferred by s 13(9B) to grant a certificate of Australian citizenship to a child under 16 was not subject to a "good character" requirement, but was subject to the restrictions contained in s 13(11). 1. Each of the powers to grant a certificate of Australian citizenship conferred on the Minister by s 13 of the 1948 Act were expressed to be "in the Minister's discretion". 2. Section 15 of the 1948 Act dealt with the effect of the grant of a certificate of Australian citizenship. A person to whom a certificate of Australian citizenship was granted under s 13(1) became an Australian citizen when he or she made a pledge of commitment in the manner provided by s 15 and in accordance with either of the forms set out in Sch 2 of the 1948 Act. In relation to a child under 16 who was included in the application for Australian citizenship made by his or her responsible parent, s 15(6) provided: (6) A person to whom a certificate of Australian citizenship has been granted under subsection 13(9B) is an Australian citizen on and after: (a) the day on which the responsible parent mentioned in that subsection becomes an Australian citizen under section 15; or (b) if the certificate is granted after the responsible parent becomes an Australian citizen under section 15—the day on which the certificate is granted. 1. Sections 14A and 14C of the 1948 Act relevantly provided that the consideration of an application for Australian citizenship or the conferral of Australian citizenship could be deferred in circumstances where a person had been charged, or may be charged, with an offence under a law of the Commonwealth, a State or a Territory. Further, if a certificate of Australian citizenship had been granted under s 13 but the person had not yet become an Australian citizen by making the pledge of commitment under s 15, s 14B conferred a discretionary power on the Minister to revoke the certificate in circumstances where a fresh application for such a certificate would be refused. 2. Deprivation of citizenship was dealt with in s 21 of the 1948 Act. Relevantly, s 21(1)(a)(ii) conferred power on the Minister to deprive a person of his or her Australian citizenship where the person had, after making an application for the grant of a certificate of Australian citizenship, been convicted of a serious offence committed at any time before the grant of the certificate, if the Minister was satisfied that it would be contrary to the public interest for the person to continue to be an Australian citizen. We use the term "serious offence" here as a shorthand for the offences covered by s 21(1)(a)(ii), namely "an offence against a law in force in a foreign country or against a law of the Commonwealth, a State or Territory for which the person has been sentenced to death or to imprisonment for life or for a period of not less than 12 months". 2007 Act 1. The conferral of Australian citizenship is governed by Subdiv B of Div 2 of Pt 2 of the 2007 Act, which commenced on 1 July 2007. Section 21 sets out the circumstances in which a person is eligible to become an Australian citizen by making an application to the Minister. The general eligibility requirements in relation to persons who are aged 18 or over are contained in s 21(2), and relevantly include a requirement that the person "is of good character at the time of the Minister's decision on the application": s 21(2)(h). 2. Section 21(5) separately provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person was aged under 18 at the time that the person made the application. Eligibility for Australian citizenship under s 21(5) is not subject to the requirements set out in s 21(2), including the good character requirement. 3. If a person makes an application for the conferral of Australian citizenship, s 24(1) requires the Minister, by writing, to approve or refuse to approve the person becoming an Australian citizen. The Minister must not approve the person becoming an Australian citizen unless the person is eligible under an applicable subsection of s 21, but has a discretion to refuse to approve such a person becoming an Australian citizen even if he or she meets the eligibility requirements: s 24(1A), (2). 4. Section 24(6) provides that the Minister must not approve a person becoming an Australian citizen at certain specified times, which broadly align with the periods covered by former s 13(11) of the 1948 Act — including when criminal proceedings are pending in relation to the person, when the person is confined to a prison in Australia or is released on licence or parole, or during fixed periods after the end of certain serious prison sentences. 5. Section 25(1) relevantly confers power on the Minister to cancel an approval given to a person under s 24 if the person has not yet become an Australian citizen, in circumstances where the person is covered by s 21(2), (3) or (4) and the Minister is satisfied that the person is not of good character: s 25(2)(b)(iii). This power applies to persons who are subject to the general eligibility requirements under s 21(2) or the eligibility requirements for persons with a permanent physical or mental incapacity under s 21(4), each of which contains a "good character" requirement. 6. Section 25(4) confers a specific cancellation power in relation to children aged under 16: Cancellation of child's approval (4) If: (a) a child aged under 16 makes an application under section 21 at a particular time; and (b) 1 or more responsible parents of the child make applications under section 21 at that time; and (c) the Minister decides under section 24 to approve the child and 1 or more of the responsible parents becoming Australian citizens; and (d) the Minister cancels the approval given to each responsible parent; the Minister must, by writing, cancel the approval given to the child. 1. Section 26 provides that a person must make a pledge of commitment to become an Australian citizen unless, relevantly, he or she was aged under 16 at the time that the application for citizenship was made. Section 27 governs the manner in which the pledge of commitment must be made. A pledge of commitment is not effective unless it is made after the Minister has approved the person's application to become an Australian citizen: s 26(2). If the person has been or may be charged with an offence under an Australian law, and has not yet taken a pledge of commitment, the Minister may determine that the person cannot make the pledge until the end of a specified period: s 26(3). 2. Section 28(1) provides that a person required to make a pledge of commitment becomes an Australian citizen on the day on which the person makes the pledge. Where a child aged under 16 is included in a citizenship application made by one or more responsible parents of the child, and the Minister decided under s 24 to approve the child and one or more of the responsible parents becoming Australian citizens, the child becomes an Australian citizen on the first day on which a responsible parent becomes an Australian citizen: s 28(3), (4). This would usually be on the day that the responsible parent makes a pledge of commitment. 3. Division 3 of Pt 2 of the 2007 Act deals with cessation of Australian citizenship. Where a person became an Australian citizen by conferral, s 34 of the 2007 Act relevantly provides: Citizenship by conferral (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: … (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); … (c) the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen. (3) However, the Minister must not decide under subsection (2) to revoke a person's Australian citizenship if: (a) the Minister may revoke the person's Australian citizenship under that subsection only because of the application of subparagraph (2)(b)(ii); 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. Time citizenship ceases (4) If the Minister revokes a person's Australian citizenship, the person ceases to be an Australian citizen at the time of the revocation. Note: A child of the person may also cease to be an Australian citizen: see section 36. Serious offence (5) For the purposes of this section, a person has been convicted of a serious offence if: (a) the person has been convicted of an offence against an Australian law or a foreign law, for which the person has been sentenced to death or to a serious prison sentence; and (b) the person committed the offence at any time before the person became an Australian citizen. 1. For the purposes of the 2007 Act, "serious prison sentence" is defined in s 3 to mean a sentence of imprisonment for a period of at least 12 months. 2. In relation to a person (such as the appellant in the present case) who applied for or was granted a certificate of Australian citizenship under the 1948 Act, s 34(2)(b)(ii) of the 2007 Act applies as if it also referred to the person's conviction, at any time after the person made the application for the certificate of Australian citizenship, of an offence referred to in subparagraph 21(1)(a)(ii) of the 1948 Act that the person committed at any time before the grant of the certificate: see Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth) (Transitional Provisions Act), Sch 3, item 6(3). 3. Section 36 of the 2007 Act provides that the Minister may revoke the citizenship of a child aged under 18 if his or her responsible parent ceases to be an Australian citizen under s 34 (among other provisions), unless he or she has another responsible parent who is an Australian citizen, or the Minister is satisfied that the revocation would cause the child to become stateless. It may be noted that this power would not be available once a person is aged 18 or over, even if the person acquired his or her citizenship as a child who was included in an application made by one or more responsible parents. Migration Act 1. A person whose Australian citizenship is revoked does not thereupon become an unlawful non-citizen under the Migration Act. Section 35 of the Migration Act provides that a person is taken to have been granted a visa upon the cessation of his or her Australian citizenship. 35 Ex‑citizen visas (1) There is a class of permanent visas to remain in, but not re‑enter, Australia, to be known as ex‑citizen visas. … (3) A person who, on or after 1 September 1994, ceases to be an Australian citizen while in the migration zone is taken to have been granted an ex‑citizen visa when that citizenship ceases. 1. An ex-citizen visa that is taken to have been granted to a person under s 35 of the Migration Act is liable to cancellation by the exercise of powers conferred by other provisions of that Act, including mandatory cancellation under s 501(3A) if the person fails the character test because of a substantial criminal record on the basis of a sentence to a term of imprisonment of 12 months or more. If the person makes representations to the Minister about revocation of such a cancellation decision, the Minister may revoke the cancellation if satisfied that the person passes the character test or that there is another reason why the original decision should be revoked: s 501CA(4). Ground 1 1. The appellant submits that s 34(2)(b)(ii) of the 2007 Act does not validly confer power on the Minister to revoke his Australian citizenship, because it is not reasonably capable of being seen as necessary for a legitimate non-punitive purpose. The steps in the appellant's argument may be summarised as follows. 2. The "starting point" is that a law that strips a person of citizenship will be characterised as punitive, and contrary to Ch III of the Constitution, unless the law is reasonably capable of being seen as necessary for a legitimate non-punitive purpose. 3. Section 34(2)(b)(ii) of the 2007 Act is reasonably capable of being seen as necessary for a legitimate non-punitive purpose only in so far as the prior criminal conduct is directly connected to an irregularity in the process of naturalisation, by calling into question the correctness of an assessment that was mandated by statute such as a requirement that the person be "of good character". 4. At the time that the appellant acquired his Australian citizenship, as a child under 16 years of age, there was no statutory requirement that the Minister be satisfied that he was "of good character" as a pre-condition to the grant of citizenship. 5. Because the subsequent discovery of the appellant's prior criminal conduct is not capable of calling into question the correctness of the assessment mandated by statute or revealing an irregularity in the naturalisation process, the application of s 34(2)(b)(ii) to the appellant is not reasonably capable of being seen as necessary to protect the integrity of the naturalisation process. 6. Accordingly, s 34(2)(b)(ii) in its application to the appellant is punitive in character, and confers a power that is exclusively judicial. 7. It will be necessary to consider the steps in this argument in greater detail below. However, the parties joined issue on an anterior question as to whether or not the appellant was granted citizenship under the 1948 Act prior to the commencement of the 2007 Act, albeit that he did not become a citizen until his mother made the pledge of commitment after the 2007 Act had commenced. The appellant contended that this question may be significant to the resolution of Ground 1, based on what were said to be differences between certain provisions of the 1948 Act and their analogues in the 2007 Act. Was the appellant granted a certificate of Australian citizenship under the 1948 Act? 1. As set out above, the acquisition of Australian citizenship by grant under Div 2 of Pt III of the 1948 Act generally involved a two-step process. First, the person was granted a certificate of Australian citizenship under s 13 and, secondly, with certain exceptions, the person made a pledge of commitment in accordance with s 15 of the 1948 Act. These steps were not required to be carried out in a particular order — the person became an Australian citizen on and after the day on which the certificate was granted or on which the person made a pledge of commitment, whichever last occurred: see s 15(1)(a) of the 1948 Act. 2. In some circumstances, the person was not required to make a pledge of commitment before becoming an Australian citizen. For example, a person who had not attained the age of 16 years (and who was not included in an application made by a responsible parent within s 13(9B)) became an Australian citizen on and after the day on which the certificate of Australian citizenship was granted: s 15(1)(b) of the 1948 Act. Relevantly to the present case, a person to whom a certificate of Australian citizenship was granted under s 13(9B) — namely, a child who was under 16 at the time of the application and who was included in an application made by a responsible parent — became an Australian citizen on the day on which the responsible parent became an Australian citizen or, if the certificate was granted after the responsible parent became an Australian citizen, the day on which the certificate was granted: s 15(6) of the 1948 Act. 3. In the present case, the 2007 Act commenced in the period between the date on which the appellant applied for the grant of a certificate of Australian citizenship and the date on which his mother made a pledge of commitment, upon which he and his mother became Australian citizens. 4. The operation of the 2007 Act on pending citizenship applications as at 1 July 2007 was addressed in items 7 and 8 of Sch 3 to the Transitional Provisions Act, which relevantly provided as follows (where "old Act" refers to the 1948 Act and "new Act" refers to the 2007 Act): 7 Applications under the old Act … Old certificate by grant and stateless applications (2) If a person's application (the old application) made under section 13 or 23D of the old Act had not been decided immediately before the commencement day, the old application is, on and from the commencement day, taken to be an application (a new application) to become an Australian citizen made under section 21 of the new Act. Note: The new application will be assessed under Subdivision B of Division 2 of Part 2 of the new Act. Subitems (7) and (8) are also relevant to this assessment. … Assessing new applications under the new Act (7) In assessing a new application under the new Act, a reference in the new Act to the time the person made the application is taken to be a reference to the time the old application or the old declaration, as the case requires, was made under the old Act. Note: The new application will be assessed under the provisions of the new Act. The effect of this subitem is that some of those provisions will be applied at the time the old application or the old declaration, as the case requires, was made under the old Act. … 8 Person granted certificate of citizenship under the old Act but not an Australian citizen under the old Act (1) If: (a) a person has been granted a certificate of Australian citizenship under section 13 of the old Act before the commencement day; and (b) the certificate is in force immediately before that day; and (c) the person has not become an Australian citizen under section 15 of the old Act immediately before that day; the certificate is, on and from the commencement day, taken to be an approval given to the person under section 24 of the new Act. Cancellation of approval under the new Act (2) For the purposes of applying section 25 of the new Act to such an approval: (a) if the person was granted the certificate of Australian citizenship under subsection 13(1) of the old Act—paragraph 25(2)(a) of the new Act is taken to apply to the person; and (b) the reference in paragraph 25(3)(a) of the new Act to the day on which the person received notice of the approval is taken to be a reference to the day on which the person was notified of the Minister's decision under section 13 of the old Act to grant the certificate. Deferral of pledge of commitment under old Act (3) If a decision is in force under subsection 14C(1) of the old Act immediately before the commencement day, the decision is, on and from the commencement day, taken to be a determination made under subsection 26(3) of the new Act. 1. Accordingly, if an application for the grant of a certificate of Australian citizenship under the 1948 Act "had not been decided" before 1 July 2007, it was taken to be an application to become an Australian citizen under Subdiv B of Div 2 of Part 2 of the 2007 Act. Instead of deciding whether to grant a certificate of Australian citizenship to the person, the Minister was required to approve or refuse to approve the person becoming an Australian citizen under s 24 of the 2007 Act. The application was to be assessed under the provisions of the 2007 Act, although maintaining the date of application and modifying the residence requirements to preserve the prevailing position under the 1948 Act. 2. If the person had been granted a certificate of Australian citizenship under s 13 of the 1948 Act prior to 1 July 2007, but the person had not yet become an Australian citizen under s 15 of the 1948 Act, the certificate was taken to be an approval given to the person under s 24 of the 2007 Act. As noted above, if the person was required to make a pledge of commitment under s 26 of the 2007 Act, he or she would become an Australian citizen under s 28(1) on the day on which that pledge was made. In respect of a child who was aged under 16 at the time that the citizenship application was made together with an application by a responsible parent, he or she would become an Australian citizen on the first day on which his or her responsible parent became an Australian citizen: see s 28(3), (4) of the 2007 Act. 3. The factual dispute between the parties to the present appeal concerns whether the appellant and his mother had been granted certificates of Australian citizenship prior to 1 July 2007, in which case the Minister would be taken to have approved them becoming Australian citizens under s 24 of the 2007 Act, or whether as at 1 July 2007 their applications for the grant of a certificate of Australian citizenship had not been "decided" under the 1948 Act. In either case, the appellant did not become an Australian citizen until his mother made a pledge of commitment under the 2007 Act on 14 November 2007. 4. To explain why this is said to be relevant to the issues raised by Ground 1, it is necessary to refer to s 13(11) of the 1948 Act, which precluded the grant of a certificate of Australian citizenship to a person while criminal proceedings were pending in relation to the person, while the person was confined to a prison in Australia, or during certain periods after the person had been released from prison or had been released from serving a sentence of imprisonment on parole or licence or upon giving a relevant security. It is clear from the express terms of s 13(11) of the 1948 Act that this temporal preclusion of the grant of a certificate of Australian citizenship could apply to a child who had not attained the age of 18 years or who made the application before attaining that age, and to a child who was under 16 at the time of application and was included in an application made by his or her responsible parent, under s 13(9) and (9B) respectively. 5. The Minister relies on s 13(11) of the 1948 Act in support of the argument that the power to revoke the appellant's citizenship under s 34(2)(b)(ii) of the 2007 Act is reasonably capable of being seen as necessary for the legitimate non-punitive purpose of protecting the integrity of the naturalisation process. The appellant responds by submitting that his application was not decided under the 1948 Act, and argues that the equivalent provision contained in s 24(6) of the 2007 Act does not on its proper construction apply to the approval of a citizenship application that is made by a person aged under 18 within s 21(5) of the 2007 Act. The significance (if any) of this distinction to the constitutional issue raised by Ground 1 is considered below. The factual premise falls to be determined on the evidence before the Court. 6. The Minister contends that the appellant was granted a certificate of Australian citizenship under s 13 of the 1948 Act on 22 June 2007. In support of this contention, the Minister relies on an affidavit of Christopher James Montgomery, a Senior Legal Officer in the Migration and Citizenship Litigation Branch of the Legal Group of the Department of Home Affairs, affirmed on 30 April 2024. Mr Montgomery deposes as to information obtained from the Department's Integrated Client Services Environment (ICSE) database and its Total Records Information Management (TRIM) system relating to the appellant's citizenship application. The effect of this evidence is as follows. 7. The ICSE database contains an entry dated 18 June 2007 recording that the appellant commenced an application for Australian citizenship. The TRIM records include a copy of the application for Australian citizenship lodged on 18 June 2007 by the appellant's mother, which included the appellant and his two siblings. 8. The ICSE database records an event on 22 June 2007 described as "Assessment Checklist Completed" in respect of the appellant and his family members. The description for the appellant's mother states "S13(1) Met", which may be taken to mean that she had been assessed to meet the requirements of s 13(1) of the 1948 Act. The description for the appellant (and each of his siblings) states "S13(9B) Under 16 Met", which may be taken to mean that he had been assessed to meet the requirements of s 13(9B) of the 1948 Act. 9. The relevant entry also states the following information in relation to the appellant, "Grant S13(9B) Under 16,0,595,5". Mr Montgomery stated that he understood "S13(9B)" to be a reference to s 13(9B) of the 1948 Act, which concerns the grant of citizenship to children under 16 years of age. There is no evidence explaining the meaning or significance of the reference to "0,595,5" after "Under 16". 10. The TRIM records include an electronic copy of a letter dated 22 June 2007 addressed to the appellant's mother, congratulating her and her children on their decision to become Australian citizens and advising her that their application had been approved: see paragraph 19 above. The letter stated that "[t]he final step in becoming an Australian citizen is making a Pledge of commitment", and that she would not acquire the legal status of an Australian citizen until she made that pledge. The letter stated that the Department would write to the appellant's mother in due course to advise the details of her citizenship ceremony. As mentioned above, there is no direct evidence that this letter was sent to or received by the appellant's mother. 11. The ICSE database records an event on 10 October 2007 that is described as "Citizenship Certificate Requested" in respect of the appellant and each of his family members. Mr Montgomery relevantly states: "I understand that entry relates to the preparation of a citizenship certificate for the appellant and his family members, to be given to them at the citizenship ceremony that was scheduled". Another event is recorded on the same day with the description "Letter requested" and the qualifier "Invitation to Ceremony". 12. The TRIM records include a letter addressed to the appellant's mother from the Department dated 10 October 2007, referring to recent advice that her application for the conferral of Australian citizenship had been approved and inviting her "to attend a citizenship ceremony to make a pledge of commitment as the final step in becoming an Australian citizen", setting out details of the time and place of the ceremony. The letter stated that, after the appellant's mother had made a pledge of commitment, she would be "given evidence of Australian citizenship, together with the evidence of Australian citizenship for the 3 children included in your application". The letter noted that "[c]hildren under 16 years are not required to make the Citizenship pledge", but noted that they were welcome to attend the ceremony. 13. The appellant's mother made the pledge of commitment on 14 November 2007. The ICSE database records two events on this date — "Ceremony Attendance" and, in respect of the appellant's mother, "Acquired" with the qualifier "Conferral". 14. The appellant contends that no certificate of Australian citizenship was in fact granted to the appellant under s 13 of the 1948 Act, with the consequence that his application had not been "decided" before the commencement of the 2007 Act and was thereafter treated as an application for approval to become an Australian citizen under s 24 of the 2007 Act. The appellant noted that s 46 of the 1948 Act provided for certificates of Australian citizenship granted under that Act to be "issued" by the Minister or an authorised person, along with a presumption that a "document purporting to be a certificate of Australian citizenship and purporting to bear the printed or stamped signature of the Minister and to be issued by the Minister or a person by authority of the Minister" was, unless the contrary was proved, deemed to be a certificate of Australian citizenship granted under the 1948 Act. Accordingly, the appellant submitted that a "certificate of Australian citizenship" must be regarded as a physical document that is formally issued. Here, there is no evidence of any such certificate having been issued to the appellant or his mother under the 1948 Act. Further, the appellant submitted that the 1948 Act did not provide for the making of a decision to grant a certificate of Australian citizenship separately from the grant of the certificate itself, and that the Parliament did not envisage that a certificate of Australian citizenship could be "constructively" granted to an applicant at the time that the application was assessed by a departmental officer. The appellant therefore disputed that a certificate of Australian citizenship had been granted to him or to his mother on 22 June 2007. 15. If the appellant's argument were accepted, it would mean that on and after 1 July 2007 he would have had a pending application under s 21 of the 2007 Act to become an Australian citizen, rather than being taken to have had such an application approved under s 24 of the 2007 Act. This would raise a potential difficulty in so far as there is no clear evidence that the Minister made any decision after 1 July 2007 to approve the appellant or his mother becoming Australian citizens. In so far as the letter dated 10 October 2007 referred to the appellant's mother having been "recently" advised that her citizenship application had been approved, this seems to have been a reference to the earlier letter dated 22 June 2007 prior to the commencement of the 2007 Act. The evidence indicates that the appellant's mother was invited to attend a citizenship ceremony on 14 November 2007, where she made a pledge of commitment. In our view, this is consistent with the appellant and his mother having been treated as falling under item 8 of Sch 3 of the Transitional Provisions Act based on the grant of a certificate of Australian citizenship under s 13 of the 1948 Act prior to 1 July 2007. 16. The appellant was issued with evidence of his Australian citizenship stating that 14 November 2007 was the date on which citizenship was acquired. This document was in the form of a notice under s 37 of the 2007 Act rather than a certificate of Australian citizenship which was no longer required under the 2007 Act: see the former Australian Citizenship Regulations 2007 (Cth), reg 10 and Sch 2 (as in force on 14 November 2007). 17. There is evidence in the ICSE database that the application by the appellant and his mother for the grant of a certificate of Australian citizenship was assessed on or about 22 June 2007 as meeting the applicable requirements, and that there was a "grant" for the purposes of s 13 of the 1948 Act. Regardless of whether or not it was delivered to the appellant's mother, the letter dated 22 June 2007 also evidences the Minister's approval of the citizenship application, such that the "final step in becoming an Australian citizen" was making a pledge of commitment. For the following reasons, we find that the Minister granted a certificate of Australian citizenship to the appellant under s 13 of the 1948 Act on 22 June 2007. 18. On a proper construction of s 13 of the 1948 Act, a distinction may be drawn between the grant of a certificate of Australian citizenship under that section and the subsequent issue of that certificate under s 46 of the 1948 Act: compare Smith-Davidson v Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 871 at 873 (Lee J). The better view is that the issue of a certificate in the form of a physical document issued under s 46 of the 1948 Act is not essential to the "grant" of a certificate of Australian citizenship under s 13 of the 1948 Act — in other words "the acquisition of citizenship is not made dependent upon the issue of the certificate": see Smith-Davidson at 874 (Lee J) (emphasis in original). The text of s 46 of the 1948 Act is consistent with the grant and issue of a certificate being treated as separate steps — first, because it suggests that a certificate has been "granted" at the time that it is "issued"; secondly, because it provides that a certificate "may" be issued rather than "shall" be issued; and thirdly, because it contemplates that a certificate can be issued by a person authorised in writing by the Minister to issue such certificates who may be a different person to the Minister or delegate for the purposes of s 13 of the 1948 Act. 19. Further, and in any event, the question turns on the construction of the applicable transitional provisions in Sch 3 of the Transitional Provisions Act, rather than the construction of s 13 of the 1948 Act itself. Item 7(2) of Sch 3 refers to an application made under s 13 of the 1948 Act that "had not been decided" immediately before the commencement of the 2007 Act. Item 8(2) of Sch 3, which deals with the cancellation under s 25 of the 2007 Act of a deemed approval to become an Australian citizen, refers to "the day on which the person was notified of the Minister's decision under section 13 of the [1948 Act] to grant the certificate". Each of these transitional provisions proceeds on the basis that there has, or has not, been a decision to grant a certificate of Australian citizenship under s 13 of the 1948 Act. In the circumstances of the present case, there is ample evidence of such a decision having been made on 22 June 2007, irrespective of whether any certificate was ever issued under s 46 of the 1948 Act. 20. The appellant also submitted that the entries in the ICSE database dated 10 October 2007 stating "Citizenship Certificate Requested" are inconsistent with any finding that a certificate of Australian citizenship was granted to the appellant on 22 June 2007. However, given that this entry was made after the commencement of the 2007 Act, it cannot be regarded as a reference to a certificate granted under s 13 of the 1948 Act. Rather, it must be taken to refer to the preparation of a "certificate" by way of evidence of Australian citizenship to be provided under s 37 of the 2007 Act once the appellant and his family members had become Australian citizens upon their mother making a pledge of commitment at a citizenship ceremony. 21. It follows that the appellant and the other members of his family were each granted a certificate of Australian citizenship under s 13 of the 1948 on 22 June 2007, and each of those certificates was in force immediately before the commencement of the 2007 Act on 1 July 2007. Under item 8(1) of Sch 3 of the Transitional Provisions Act, the certificates were, on and from 1 July 2007, taken to be approvals given to the appellant and his family members under s 24 of the 2007 Act. Unless her approval was cancelled under s 25 of the 2007 Act, the appellant's mother would become an Australian citizen on the day on which she made a pledge of commitment (ss 26(1), 28(1) of the 2007 Act), and the appellant would become an Australian citizen on the same day (s 28(3), (4) of the 2007 Act). The appellant's mother made a pledge of commitment on 14 November 2007, upon which she and the appellant each became Australian citizens by conferral under Subdiv B of Div 2 of Pt 2 of the 2007 Act. 22. Some time after the Court had reserved its judgment on the appeal, the appellant sought leave to refer to and rely upon reg 10 and Form 6A of the Australian Citizenship Regulations 1960 (Cth) (1960 Regulations) as in force immediately before the commencement of the 2007 Act, in support of his submission that he had not been granted a certificate of Australian citizenship under s 13 of the 1948 Act prior to 1 July 2007. 23. Regulation 10(1) of the 1960 Regulations relevantly provided that "[a] certificate of Australian citizenship granted under section 13 of the [1948 Act] must be in accordance with Form 6A". Form 6A was set out in Sch 2 of the 1960 Regulations, and prescribed a form of certificate to be granted to a named applicant. While the terms of Form 6A refer to the Minister having granted "this certificate of Australian citizenship", it may be observed that the form referred to the certificate being "issued" either by the Minister or by the authority of the Minister, and seemed to contemplate that it would not be issued until the person had become an Australian citizen under s 15 of the 1948 Act (even providing, for example, an option for its co-signature by the "presenter" who performs the function of administering the pledge of commitment to the person). The prescribed form might be regarded as equally consistent with the issue and proof of certificates of Australian citizenship under s 46 of the 1948 Act, as opposed to the grant of such a certificate under s 13 of the 1948 Act. 24. The Minister opposed leave being granted to the appellant to rely on the 1960 Regulations, having regard to the timing of the application for leave, the absence of any explanation for its late filing, and the lack of any relevance of the 1960 Regulations to the issues arising for determination on the appeal. 25. It is well established that post-hearing submissions may only be filed with the leave of the Court, and that such leave is ordinarily granted only in exceptional circumstances: Carr v Finance Corporation of Australia (No 1) (1981) 147 CLR 246 at 258 (Mason J); Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at [29]-[31] (McHugh J), [143] (Heydon J); Frugtniet v Secretary, Department of Social Services (2021) 285 FCR 159 at [85] (Wheelahan and Snaden JJ). 26. In the present case, the appellant could have addressed the 1960 Regulations in his written and oral submissions on the appeal, and no explanation has been provided for his failure to do so. Further, and in any event, it is difficult to see how the additional material is relevant to the resolution of the question whether the appellant was granted a certificate of Australian citizenship under s 13 of the 1948 Act prior to 1 July 2007. As a general rule, it is not permissible to construe a statute by reference to the terms of delegated legislation made under that statute: see e.g. Hunter Resources Ltd v Melville (1988) 164 CLR 234 at 244 (Mason CJ and Gaudron J); Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1 at [56] (French CJ); Alphapharm Pty Ltd v H Lundbeck A/S (2014) 254 CLR 247 at [39] (Crennan, Bell and Gageler JJ). While there may be limited exceptions to that general rule, for example where regulations are promulgated contemporaneously with the enactment of the principal Act as part of an integrated regulatory scheme, or where the statute expressly provides that it is subject to exceptions or modifications provided by regulation, the 1960 Regulations do not fall into any such category. The 1960 Regulations therefore provide no assistance in the construction of ss 13 and 46 of the 1948 Act. 27. Accordingly, the application made by the appellant for leave to refer to and rely on the 1960 Regulations is refused. The constitutional validity of s 34(2)(b)(ii) 1. Returning to the appellant's challenge to the validity of s 34(2)(b)(ii) of the 2007 Act in its application to him, the appellant submitted that a Commonwealth law conferring power on the Executive to strip a person of Australian citizenship will be characterised as punitive, contrary to Ch III of the Constitution, unless it is reasonably capable of being seen as necessary for a legitimate non-punitive purpose: Jones at [39] (Kiefel CJ, Gageler, Gleeson and Jagot JJ), [76]-[77] (Gordon J); see generally Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27 (Brennan, Deane and Dawson JJ); Alexander at [70], [75], [82], [96] (Kiefel CJ, Keane and Gleeson JJ), [98], [120] (Gageler J), [157]-[158], [173]-[174] (Gordon J), [247]-[253] (Edelman J); Benbrika at [19]-[20], [26]-[27], [41], [45]-[46] (Kiefel CJ, Gageler, Gleeson and Jagot JJ), [50], [53], [73] (Gordon J), [76]-[77] (Edelman J), compare at [139] (Steward J). In particular, a power to revoke citizenship by way of retribution or as a sanction for past criminal or otherwise reprehensible conduct will ordinarily amount to the imposition of punishment for criminal guilt, which is an exclusively judicial function. 2. The qualification to this principle was applied by the High Court in Jones to uphold the validity of s 34(2)(b)(ii) of the 2007 Act in its application to a person who had been convicted of various serious offences, several of which had been committed by him as an adult before he became an Australian citizen under the 1948 Act. A majority of the Court held that the power conferred on the Minister by s 34(2)(b)(ii) to revoke the plaintiff's citizenship was not a power to punish criminal guilt and was not otherwise exclusively judicial, because it was reasonably capable of being seen as necessary for the non-punitive purpose of protecting the integrity of the naturalisation process. In reaching this conclusion, the majority emphasised the statutory precondition to the grant of a certificate of Australian citizenship that required the Minister to be satisfied that the person was of "good character": see s 13(1)(f) of the 1948 Act. 3. The central question raised by Ground 1 is whether a different conclusion should be reached in circumstances where the appellant, as a child under 16 years of age who was included in the application of a responsible parent, was not himself required to satisfy a "good character" requirement as a precondition to becoming an Australian citizen. The appellant submits that, in the absence of any connection to such a statutory precondition to the grant or conferral of citizenship, the power to revoke his citizenship under s 34(2)(b)(ii) is not reasonably capable of being seen as necessary for the purpose of protecting the integrity of the naturalisation process, and therefore must be characterised as punitive and exclusively judicial. The Minister, on the other hand, submits that a subsequent conviction in respect of prior serious offending by a child who was under 16 years of age at the time of the grant of citizenship would have been relevant to the exercise by the Minister of the discretionary power to grant citizenship to that child under s 13(9B) of the 1948 Act, such that the conferral of a power to revoke citizenship in such circumstances is connected to the protection of the integrity of the naturalisation process. The decision in Jones 1. The plaintiff in Jones was a British citizen who migrated to Australia with his parents in 1966, when he was 16 years of age. In 1988, he applied for and was granted a certificate of Australian citizenship under s 13(1) of the 1948 Act, and became an Australian citizen upon making a pledge of commitment under s 15 of the 1948 Act. Some years later, he was convicted of five counts of indecent dealing and indecent assault, and was sentenced to a term of imprisonment of two and half years on each count to be served concurrently. Two of the offences had been committed before the plaintiff became an Australian citizen in 1988. Based on his convictions for those offences, the Minister revoked the plaintiff's Australian citizenship under s 34(2)(b)(ii) of the 2007 Act. 2. The plurality judgment referred to the "good character" pre-condition to the grant of a certificate of Australian citizenship under s 13(1) of the 1948 Act, observing that it "required the Minister to be satisfied of the person's 'enduring moral qualities', being their 'disposition rather than general reputation'", and that "[p]ast conviction of a serious offence was relevant to the requisite ministerial assessment of character, without necessarily being determinative of that assessment": Jones at [13] (Kiefel CJ, Gageler, Gleeson and Jagot JJ), referring to Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [65] (Gleeson CJ and Gummow J). The plurality noted that there was a corresponding precondition to the approval of a person becoming an Australian citizen under Subdiv B of Div 2 of Pt 2 of the 2007 Act: Jones at [23]. 3. The plurality referred to extrinsic material preceding the amendments to the 1948 Act that introduced the predecessor provision to s 34(2)(b)(ii), by which a person could be deprived of citizenship if he or she had committed a serious offence before the grant of citizenship even though the conviction occurred after the grant: Jones at [17]. The then Minister for Immigration and Ethnic Affairs had stated in Parliament that such a power "would not constitute an additional penalty", and "should be invoked only if an applicant has obtained citizenship by false pretences; in other words, where he has obtained something he was not entitled to": Jones at [17], quoting from Australia, House of Representatives, Parliamentary Debates (Hansard), 6 May 1982 at 2361. 4. Accordingly, the plurality accepted that the purpose of the predecessor provision — s 21(1)(a)(ii) of the 1948 Act — was not the imposition of additional punishment on the person who had been convicted of the relevant offence. Rather, its purpose was "to safeguard the integrity of the administrative function by which ministerial satisfaction that the person was of good character was a prerequisite to the person being granted Australian citizenship and in respect of which conviction of a serious offence would have been relevant to the performance of that function": Jones at [19]. The plurality continued (at [20]): This means s 21(1)(a)(ii) operated to ensure that quirks of timing in the commencement and conclusion of criminal proceedings did not allow a person's prior criminal conduct to remain unconsidered in the ministerial determination of whether the person was of the requisite character to be granted Australian citizenship. In so doing, the provision would also create a disincentive for an applicant for Australian citizenship to conceal prior criminal conduct during the application process. 1. Further, in exercising the "discretionary value judgment" involved in considering whether it would be contrary to the public interest for the person to continue to be an Australian citizen, the Minister was permitted "to consider whether the Minister would have been satisfied that the person was of good character had the Minister known at the time of the grant of citizenship of the offence or offences in respect of which the person was later convicted and sentenced": Jones at [21]; see also at [54]. 2. As s 34(2)(b)(ii) of the 2007 Act replicated the power under s 21(1)(a)(ii) of the 1948 Act, it remained the purpose of that power, in its modified application to the plaintiff under item 6(3) of Sch 3 to the Transitional Provisions Act, "to continue to protect the integrity of the administrative process" by which certificates of Australian citizenship were granted under s 13(1) of the 1948 Act: Jones at [34]. The effect of each of those provisions was "to permit what had been considered and done administratively to be reconsidered and undone administratively if at any time later a criminal conviction were to demonstrate the original decision to have been made on materially incorrect or incomplete information": Jones at [51]. 3. The plurality articulated a "narrow path to validity" which turned on a "single dispositive issue: whether s 34(2)(b)(ii) of the Citizenship Act is reasonably capable of being seen as necessary to protect the integrity of the naturalisation process in accordance with which Mr Jones was granted his certificate of Australian citizenship under s 13(1) of the 1948 Act so as to have become an Australian citizen under s 15(1) of that Act": Jones at [41]; see also at [63] (Gordon J), [149] (Edelman J), [188], [197] (Steward J). In the context of the application of the principle in Lim, that issue was "ultimately directed to a single question of characterisation: whether the power to impose the detriment conferred by the law is properly characterised as punitive and therefore as exclusively judicial": Jones at [43]. 4. Drawing a comparison with United States authorities in relation to "denaturalization", the plurality observed that the loss of citizenship that was fraudulently or illegally procured is not imposed as a punishment but rather is an incident of "the power to make rules for the naturalization of aliens": Jones at [46], referring to Trop v Dulles 356 US 86 (1958). This included "cases in which findings made at the time of the grant of citizenship that a statutory precondition that the applicant 'is a person of good moral character' was met have subsequently been proven erroneous by reference to evidence which has constituted or included later convictions relating to prior criminal conduct": Jones at [48]. The plurality stated (at [49]): For the purpose of determining whether a Commonwealth law providing for denaturalisation is reasonably capable of being seen as necessary for the legitimate non-punitive purpose of protecting the integrity of the naturalisation process so as to escape characterisation as punishment, what is usefully taken from that body of case law in the United States is the significance of relating the provision for denaturalisation to one or more of the statutory prerequisites to naturalisation. 1. In concluding that s 34(2)(b)(ii) of the 2007 Act, in its modified application to a person in the position of Mr Jones, was reasonably capable of being seen as necessary to protect the integrity of the naturalisation process for which ss 13(1) and 15(1) of the 1948 Act provided, the plurality focused attention on the following four features of the legislative context and history: Jones at [50]-[51]. 2. First, it was a statutory precondition to the grant of a certificate of Australian citizenship under s 13(1) of the 1948 Act that the Minister administering the 1948 Act was satisfied that the person was of "good character". 3. Second, "prior serious offending was relevant to the assessment which the Minister needed to undertake to determine whether that precondition was met". 4. Third, "any later conviction of a prior serious offence was likely to call into question the correctness and completeness of the evidentiary basis on which the ministerial assessment was made". 5. Fourth, s 34(2)(b)(ii) replicates and perpetuates the substance of the regime that existed under s 21(1)(a)(ii) of the 1948 Act for the deprivation of citizenship upon later conviction of a past serious offence. Accordingly, from the moment when he became an Australian citizen under the 1948 Act, Mr Jones faced (and was taken to have known that he faced) the same "jeopardy" of denaturalisation for prior criminal conduct. 6. The plurality relied on these four features "in combination" to conclude that s 34(2)(b)(ii) of the 2007 Act had a substantial and unbroken connection to irregularity in the process of naturalisation which resulted in the grant of citizenship to the plaintiff: Jones at [52]. 7. Justice Edelman also upheld the validity of s 34(2)(b)(ii) in its operation in respect of Mr Jones. His Honour noted that, at the time of Mr Jones' naturalisation, s 21 of the 1948 Act imposed "a discretionary condition" upon his continuing citizenship in the form of a ministerial power to revoke citizenship that was "enlivened by circumstances after naturalisation that, in effect, cast doubt on whether the person satisfied the condition of being of good character at the time of naturalisation" (referring to s 13(1)(f) of the 1948 Act): Jones at [109]. The 2007 Act maintained "[t]he 'good character' eligibility requirement for citizenship", and the Minister "retained the power to revoke Mr Jones' citizenship for failing to meet a condition of naturalisation": Jones at [112]. Justice Edelman described s 34(2)(b)(ii) as "part of a suite of gateway provisions to revocation of citizenship which have this protective purpose of empowering the revocation of citizenship where a person has obtained citizenship to which they should not have been entitled": Jones at [158]. Section 34(2)(b)(ii) was concerned with the integrity of the naturalisation process because it ensured "that the good character evaluation would not be stultified by the absence of information relevant to the application process for Australian citizenship": Jones at [165]. As Edelman J stated (at [164]): Unless an applicant confessed in their application to offences which they had committed but for which they had not been convicted or perhaps even charged, the Minister would not have all relevant information at the time of assessing the application to determine whether the applicant was of good character. 1. As a consequence, Edelman J considered that any exercise of power conferred by s 34(2)(b)(ii) together with the "public interest" criterion in s 34(2)(c) required the Minister to consider (among other things) whether "the conduct for which the person was convicted and punished after their application for, or grant of, citizenship deprived the person of good character at the time of naturalisation": Jones at [180]. If not, then s 34(2)(c) would not be satisfied because "[i]t is not reasonably necessary for the protection of the integrity of the naturalisation process to require the revocation of a grant of citizenship that the Minister is satisfied would have been granted in any event": Jones at [178]. 2. Similarly, Steward J agreed with the plurality that s 34(2)(b)(ii) was valid in its application to Mr Jones because it was reasonably capable of being seen as necessary for the legitimate non-punitive purpose of protecting the integrity of the naturalisation process: Jones at [188]. His Honour pointed to the established condition of naturalisation that an applicant be of good character, and noted that past offending by such an applicant "would plainly be relevant to issues of good character": Jones at [190]. In that regard, s 34(2)(b)(ii) of the 2007 Act was the successor to provisions in earlier legislation which conferred powers of denaturalisation based on undisclosed offending prior to naturalisation that was later discovered: Jones at [192]-[195]. Justice Steward observed that there was a "latent assumption within s 34(2)(b)(ii), when combined with s 34(2)(c), that a person who has been convicted of the sort of pre-citizenship offence that merits a prison sentence of at least 12 months was not of good character when he or she applied to become a citizen": Jones at [200]-[201]. Nevertheless, if the Minister were satisfied that the person was of "good character" as at the time when he or she applied for citizenship, notwithstanding such a conviction, Steward J considered that it would be open to the Minister not to be satisfied under s 34(2)(c) that it was contrary to the public interest for the person to remain a citizen: Jones at [202]. In contrast to the view of Edelman J, this seems to leave room for the Minister to revoke a person's citizenship under s 34(2)(b)(ii) even if the person would have satisfied the "good character" requirement, albeit that Steward J accepted that the Minister could not exercise the power for extraneous purposes of retribution, denunciation or deterrence: see Jones at [199], [201]. 3. While Gordon J agreed with the formulation of the dispositive issue, she dissented in the result: Jones at [63]. Her Honour accepted the submission advanced by the Commonwealth that the power in s 34(2)(b)(ii) is directed at "the 'gap' created by the possibility of criminal conduct, occurring before the grant but not known about at the time of the grant, that is clearly relevant to the good character criterion of eligibility for citizenship", and that its purpose is "to protect the integrity of the naturalisation process by ensuring that accidents of timing do not allow decisions about naturalisation to be made irrevocably on incorrect and incomplete information, and to provide a disincentive for an applicant for citizenship to conceal their prior criminal conduct or to rush to secure citizenship before that conduct is revealed": Jones at [71]-[72]. However, in dissent, Gordon J concluded that s 34(2)(b)(ii) went beyond what is reasonably capable of being seen as necessary for that purpose: Jones at [90], [96]-[97]. In contrast to the other sub-paragraphs of s 34(2)(b) which were concerned with fraud, concealment or dishonesty in the acquisition of citizenship, her Honour did not consider that s 34(2)(b)(ii) had a sufficiently close or relevant connection to the protection of the integrity of the naturalisation process. 4. A key aspect of s 34(2)(b)(ii) which led Gordon J to that conclusion was the period of time during which the power to revoke citizenship may be exercised, and in particular the lack of any time limit between the conviction that enlivens the revocation power and the exercise of that power, leaving a naturalised citizen in the position of Mr Jones "liable, for the rest of their life, to potential expulsion from the nation": Jones at [88]-[90]. In such circumstances, an indefinite power of revocation following conviction had "less …to do with the conviction and the extent to which that conviction brings into question the integrity of the process of naturalisation": Jones at [92]. In her Honour's view, the broad "public interest" criterion in s 34(2)(c) did not remove this problem and "save" s 34(2)(b)(ii) from invalidity: Jones at [93]-[94]. The power to revoke citizenship under s 34(2)(b)(ii) was therefore not "sufficiently tailored" to the achievement of its legitimate non-punitive purpose of protecting the integrity of the naturalisation process, and was not limited to what is reasonably capable of being seen as necessary for that purpose: Jones at [78], [94]-[95]. 5. Although these views expressed by Gordon J in Jones were in dissent, she also accepted the importance to the question of constitutional validity under Ch III of considering whether the power to revoke a person's citizenship reflects a condition imposed on the person's naturalisation at the time that he or she was granted citizenship: Jones at [79]. At the time that Mr Jones was granted citizenship, he had been required to meet a "good character" requirement and was subject to a power of revocation that was equivalent to that conferred by s 34(2)(b)(ii), and was therefore taken to have been "on notice" of both that condition and that power when he applied for and was granted citizenship: Jones at [80]. 6. The High Court's decision in Jones establishes that s 34(2)(b)(ii) of the 2007 Act is valid in its application to a person such as the plaintiff in that case, who was required to satisfy the Minister that he was of "good character" as a precondition to the grant of citizenship and who was always liable to a ministerial discretion to revoke that citizenship if he was subsequently convicted of a serious offence that was committed before he became a citizen. The conferral of such a power on the Minister in those circumstances is reasonably capable of being seen as necessary to protect the integrity of the process by which citizenship was granted or conferred, and the power is therefore not properly characterised as punitive and exclusively judicial in nature. The application of s 34(2)(b)(ii) to the appellant 1. The holding in Jones is not determinative of Ground 1 in the present appeal. While the same provision is in issue, s 34(2)(b)(ii) is challenged in its application to the appellant, who was a child at the time of the application for and the grant of Australian citizenship, so that the naturalisation process was governed by different provisions of the 1948 Act to those considered in Jones. The High Court's reasoning in Jones cannot be directly transposed to the present case, particularly in so far as it emphasises the connection between the power conferred by s 34(2)(b)(ii) and the "good character" requirement as a condition of eligibility for the grant of citizenship. But nor does the decision in Jones stand as positive authority for a converse proposition that s 34(2)(b)(ii) is invalid as contrary to Ch III of the Constitution in any of its other applications in which there was no such statutory precondition to the grant or conferral of citizenship. 2. It is common ground that Ground 1 of the appeal turns on the question whether s 34(2)(b)(ii) in its application to the appellant is reasonably capable of being seen as necessary for the legitimate non-punitive purpose of protecting the integrity of the naturalisation process. The Minister did not suggest that the application of s 34(2)(b)(ii) to the appellant could be supported by any other non-punitive purpose. Accordingly, the question is whether the principle for which Jones stands as authority is capable of being applied or extended to cover the different circumstances of the present case, in which the appellant was not required to satisfy the Minister that he was of a "good character" at the time that he became an Australian citizen, but where the Minister nevertheless had a discretion to refuse to grant a certificate of Australian citizenship to the appellant (or to refuse to approve the appellant becoming an Australian citizen). 3. The appellant submitted that the "narrow path to validity" that was adopted by the plurality in Jones, with which Edelman J and Steward J substantially agreed, was not available to support the valid application of s 34(2)(b)(ii) to the appellant. Because there was no requirement for the Minister to assess the appellant's "good character" as a statutory condition on the grant or conferral of Australian citizenship, the appellant submitted that the subsequent discovery of prior criminal offending was not capable of calling into question any assessment that was mandated by statute. Nor could it be said, in the appellant's submission, that he had acquired citizenship to which he would not have been entitled if the criminal offending had been known at the time of grant. He submitted that Parliament had made a deliberate choice under both the 1948 Act and the 2007 Act not to require the Minister to be satisfied that a child applicant is of good character before becoming an Australian citizen. In the absence of any connection with a statutory prerequisite to the grant of citizenship that would or may not have been met by the appellant, the application of s 34(2)(b)(ii) was not directed to an irregularity in the process of naturalisation and was not concerned with the integrity of that process. Without such a legitimate non-punitive purpose, the appellant submitted that the power to strip him of his citizenship under s 34(2)(b)(ii) must be characterised as punitive, and its conferral on the Minister was contrary to Ch III of the Constitution. 4. The Minister submitted that there was a sufficient connection between s 34(2)(b)(ii) in its application to the appellant and the process of naturalisation by which he acquired his citizenship. Just as it was sufficient in Jones that the prior serious offending was relevant to the assessment by the Minister of the "good character" requirement, the Minister submitted that the subsequent disclosure of prior offending by a child under 16 years of age would have been relevant to the exercise of the discretion to grant citizenship to that child under the 1948 Act. The Minister referred in particular to s 13(11) of the 1948 Act, to which s 13(9B) was expressly made subject, under which the grant of citizenship to a person (including a child) was precluded during various periods relating to criminal offending, including where there were pending criminal proceedings in relation to the person. The Minister was therefore bound to consider the person's criminal history in exercising the discretionary power conferred by s 13(9B) of the 1948 Act. 5. In the Minister's submission, s 34(2)(b)(ii) of the 2007 Act, like its predecessor in s 21(1)(a)(ii) of the 1948 Act, applies equally to child applicants so as to allow the Minister under s 34(2)(c) to reconsider matters that ought to have been considered at the time of grant of citizenship, including the person's criminal history, and to determine whether it would be contrary to the public interest for the person to remain an Australian citizen. The Minister accepted that the power could not be exercised for an illegitimate (i.e. punitive) purpose. Accordingly, it was submitted that s 34(2)(b)(ii), in its application to a person such as the appellant who had acquired Australian citizenship as a child, was "reasonably appropriate and adapted to addressing an 'irregularity' in the process of naturalisation where a person has engaged in serious offending which is relevant to the decision concerning naturalisation made pursuant to s 13(9B) of the 1948 Act, and the subsequent conviction was likely to undermine the basis on which that decision was made". 6. As discussed in detail above, it was integral to the reasoning of the majority in Jones that the prior criminal conduct the subject of the conviction was relevant to a statutory precondition to the grant of citizenship to the person, in the form of a requirement that the Minister must be satisfied that the person was of "good character": see Jones at [19], [20], [48]-[49], [51] (Kiefel CJ, Gageler, Gleeson and Jagot JJ), [109], [112], [165], [180] (Edelman J), [190], [200]-[201] (Steward J), and compare at [79]-[80] (Gordon J). The prior offending, unknown or undisclosed at the time of the application for and grant of citizenship, was relevant to the ministerial assessment and satisfaction of that precondition, so that it could be said that the person may have obtained a grant of citizenship to which he or she was not entitled — that is, because the person was not in fact "of good character" at the time of naturalisation. 7. The existence of the "good character" precondition was central to the first two (if not three) of the four contextual features that were relied on by the plurality in Jones to support the conclusion that s 32(2)(b)(ii) goes no further than is reasonably capable of being seen as necessary to protect the integrity of the naturalisation process: see Jones at [51]. The plurality expressly relied on all four features "in combination" to answer the criticism that s 32(2)(b)(ii) lacked any criteria to connect the person's offending to an irregularity in the naturalisation process: Jones at [52]. 8. The present appeal turns on whether analogous reasoning can be adopted to support the validity of s 32(2)(b)(ii) even in the absence of any statutory precondition relating to "good character", on the basis that the prior serious offending was relevant to the Minister's assessment of discretionary factors in determining whether to refuse to grant citizenship to a child applicant. 9. The Minister sought to emphasise various statements in Jones that might be viewed as consistent with the articulation of a more general principle. For example, the plurality described the effect of s 32(2)(b)(ii) as permitting "what had been considered and done administratively to be reconsidered and undone administratively if at any time later a criminal conviction were to demonstrate the original decision to have been made on materially incorrect or incomplete information": Jones at [51]. In this sense, the Minister identified the mischief at which the power is directed as "the completeness and correctness of the evidentiary basis" on which a decision to grant citizenship was made, and the so-called "accidents of timing" in respect of when prior criminal conduct comes to light: Jones at [20], [51] (Kiefel CJ, Gageler, Gleeson and Jagot JJ), [71]-[72], [81] (Gordon J). The Minister argued that the new information need not be determinative of whether or not the person was entitled to become an Australian citizen; rather, it is sufficient that the information was relevant to the assessment of the statutory criterion: see Jones at [13] (Kiefel CJ, Gageler, Gleeson and Jagot JJ), [190] (Steward J). 10. However, it is difficult to elevate these statements into any general principle, divorced from the context in which the new information was relevant to an assessment of the "good character" precondition to the grant of citizenship, which constituted a central premise of the reasoning by which the majority of the High Court concluded that the revocation power could reasonably be seen as necessary for the protection of the integrity of the naturalisation process. 11. Conversely, we do not place weight on the reference in the plurality judgment in Jones to a "narrow path to validity", which the appellant suggested should be taken to mean that s 34(2)(b)(ii) of the 2007 Act was upheld on a "narrow basis". The plurality's reference to a "narrow path to validity" should not be taken to imply that the "single dispositive issue" (namely, whether or not the revocation power is reasonably capable of being seen as necessary to protect the integrity of the naturalisation process) ought to be approached in any narrow fashion. The phrase "narrow path" was used in the context of distinguishing broader submissions that had been advanced by the Commonwealth in relation to the scope of the legislative power conferred by s 51(xix) of the Constitution to impose conditions on the grant and continuance of Australian citizenship: Jones at [37]-[38], and see also at [102]-[107] (Edelman J). In circumstances where it was accepted by the parties that a narrower test was required to be met in any event in order to comply with Ch III of the Constitution, issue was joined on the "single dispositive issue" that was sufficient to resolve both limbs of the plaintiff's constitutional challenge. Thus, the "narrow path to validity" was a reference to the question whether s 34(2)(b)(ii) was reasonably capable of being seen as necessary to protect the integrity of the naturalisation process, rather than an indication of the approach to be adopted in answering that question. 12. It remains the case that a Commonwealth law empowering the Executive to strip a person of his or her Australian citizenship will be characterised as punitive, and as conferring an exclusively judicial function, unless the law is reasonably capable of being seen as necessary for a legitimate non-punitive purpose: Jones at [39]; compare YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40 at [16], [18] (Gageler CJ, Gordon, Gleeson and Jagot JJ), [241] (Beech-Jones J). This is analogous to the "default" (or "prima facie") characterisation under the principle in Lim of a law that empowers the Commonwealth Executive to detain a person in custody: compare Jones at [76] (Gordon J). The validity of s 34(2)(b)(ii) of the 2007 Act in its application to the appellant therefore turns on whether it can reasonably be seen as necessary for a legitimate non-punitive purpose, being the protection of the integrity of the naturalisation process, by ensuring that the Minister can reconsider the grant of citizenship in the light of information relating to prior criminal offending that could or should have been taken into account in exercising the discretion to grant citizenship. Or, to put this another way, is the failure to consider such information when exercising the discretion under s 13(9B) of the 1948 Act or s 21(5) of the 2007 Act capable of being seen as an "irregularity" in the process of naturalisation that warrants a reconsideration of the power in the light of the correct and complete information? 13. Contrary to the Minister's submissions, the terms of s 13(11) of the 1948 Act do not themselves support a positive answer to this question. As set out above, s 13(11) precludes the Minister from granting a certificate of Australian citizenship, including to a child under 16 who is included in the application of a responsible parent within s 13(9B), during certain periods in which criminal proceedings are pending in relation to a person, or the person is confined in prison, or the person has served or has been released from serving certain sentences of imprisonment. It can be accepted that this requires the Minister to consider aspects of the "criminal history" of a person before deciding to grant a certificate of Australian citizenship to that person. However, that criminal history is concerned with conduct that is the subject of criminal charges or convictions, and does not extend to uncharged and potentially unknown criminal conduct. 14. The Minister nevertheless submitted that the purpose of s 13(11) of the 1948 Act, and in particular s 13(11)(a), was to disable the Minister from deciding whether to grant a certificate of Australian citizenship until the outcome of any pending criminal proceedings was known, and that this (together with the other paragraphs in s 13(11)) supported an inference that past criminal conduct was a mandatory relevant consideration in the exercise of the discretion conferred by s 13(9B). This was said to be "functionally identical" or closely analogous to the reasoning adopted by the majority of the High Court in Jones in relation to the relevance of a subsequent conviction of prior criminal conduct to the assessment of the "good character" requirement in s 13(1)(f) of the 1948 Act. 15. However, it is difficult to regard the possibility of uncharged or unknown criminal conduct which might subsequently result in a conviction as being a mandatory relevant consideration that is required to be taken into account by the Minister when exercising the discretion to grant citizenship. The basis of the reasoning in Jones was not that the Minister had been bound to take such conduct into account at the time that citizenship was granted, but rather that the conduct would have been relevant to the assessment of a statutory prerequisite to the grant. Even if the reasoning in Jones could be translated to mandatory relevant considerations which are not preconditions to the grant of citizenship, the Minister was not obliged to have regard to uncharged or unknown criminal conduct when exercising the power conferred by s 13(9B), particularly in the absence of any good character requirement as a statutory precondition to the grant of a certificate of Australian citizenship under that subsection. 16. For completeness, we note that the appellant contended that he was not subject to s 13(11) of the 1948 Act, because he was not granted a certificate of Australian citizenship prior to the commencement of the 2007 Act on 1 July 2007. For the reasons set out above, the premise to this contention is rejected. It is therefore unnecessary to address the appellant's submission that s 24(6) of the 2007 Act, unlike its predecessor provision in s 13(11) of the 1948 Act, does not apply to the approval of an application for citizenship made under s 21(5) by a child aged under 18. 17. The reach of ss 14A and 14C of the 1948 Act might extend in some circumstances to uncharged criminal conduct. Section 14A provides for the consideration of an application for citizenship to be deferred by the Minister if it appears that the person "has been charged, or may be charged" with an offence. Section 14C makes similar provision allowing the Minister to defer the conferral of Australian citizenship on a person after he or she has been granted a certificate of Australian citizenship but before he has become an Australian citizen under s 15 of the 1948 Act (compare s 26(3)-(6) of the 2007 Act). However, each of those provisions is concerned with a deferral of the grant or conferral of Australian citizenship, rather than the refusal of an application. These provisions allow the Minister to wait and see whether the person will be charged or convicted of an offence before deciding whether or not to grant citizenship to the person or to permit the person to make a pledge of commitment. This does not amount to making uncharged criminal conduct or the possibility of future criminal charges a mandatory relevant consideration in the exercise of the power to grant citizenship. Nor does the failure to exercise such a power to defer the consideration or conferral of citizenship under ss 14A or 14C of the 1948 itself amount to an "irregularity" in the process of naturalisation. 18. The Minister argued that s 34(2)(b)(ii) of the 2007 Act replicated the power conferred by s 21(1)(a)(ii) of the 1948 Act as in force at the time that the appellant was granted a certificate of Australian citizenship, and that the latter provision applied without distinction between adult and child applicants. The Minister submitted that the appellant was therefore subject to "no greater jeopardy of denaturalisation" than he faced when applying for citizenship under the 1948 Act, invoking the fourth "feature" identified by the plurality in Jones. This glosses over the fact that the plurality relied on that feature "in combination" with the other three features to support the conclusion that the application of s 34(2)(b)(ii) to Mr Jones was reasonably capable of being seen as necessary to protect the integrity of the naturalisation process. Further, it begs the question as to whether s 21(1)(a)(ii) validly applied to persons in the position of the appellant who had been granted citizenship as child applicants under s 13(9B) of the 1948 Act. 19. The Minister's submission ultimately amounts to an argument that the integrity of the naturalisation process can be protected by conferring a power to reconsider a grant or conferral of citizenship in the light of any information that subsequently comes to light in respect of any circumstances prevailing at or before the date of grant or conferral that could have been relevant to the exercise by the Minister of the discretion to grant or refuse to grant citizenship. Although the Minister fixes on prior serious criminal offending, which is the subject of the power conferred by s 34(2)(b)(ii), it is difficult to see precisely how or where a line could be drawn in the absence of any prescribed statutory condition on the grant of citizenship. 20. Although it was theoretically possible under the 1948 Act for the Minister separately to refuse to grant a certificate of Australian citizenship to a child who was included in the application of a responsible parent and was under 16 at the time of the application, in many respects the citizenship of such a child travelled with the citizenship of his or her responsible parent or parents. In particular, although the responsible parent was required to satisfy the Minister that he or she was of good character under s 13(1)(f), no such requirement was applicable in relation to a child applicant under s 13(9B). Under s 15(6) of the 1948 Act, the child became an Australian citizen on the day on which the responsible parent became an Australian citizen or, if the responsible parent had become an Australian citizen before the certificate of citizenship was granted to the child, on the day on which the certificate was granted. If the responsible parent or parents were to renounce or lose Australian citizenship under ss 18 or 19 of the 1948 Act, a child who had not attained the age of 18 years also ceased to be an Australian citizen (provided that the child was not thereby rendered stateless): s 23(1), (3) of the 1948 Act. If the responsible parent or parents were deprived of Australian citizenship under s 21 of the 1948 Act, the Minister had power to direct that a child who had not attained the age of 18 years shall cease to be an Australian citizen: s 23(2), (3) of the 1948 Act. The 2007 Act contains provisions to similar effect: see ss 21(5), 25(4), 28(3)-(4), 36 and 46(2A). 21. It is clear that prior serious criminal conduct engaged in by a child could be taken into account as a permissible consideration in the exercise of the discretion to grant citizenship to that child under s 13(9B) of the 1948 Act. Nevertheless, such conduct did not bear upon the satisfaction of any statutory precondition to the grant of citizenship. At most, it can be regarded as a consideration to which the Minister was bound to have regard, to the extent that such conduct was known at the time that the power was exercised. However, that is qualitatively different in nature to the assessment of an eligibility requirement or precondition to the grant of citizenship that requires the Minister to be satisfied that the person is of "good character". It is also qualitatively different to the commission of offences involving fraud, misrepresentation or concealment in connection with the application for citizenship that are covered by s 21(1)(a)(i) and (iii) of the 1948 Act, or s 34(2)(b)(i), (iii) and (iv) of the 2007 Act. 22. Accordingly, in our view, a power to revoke citizenship granted to a child under s 13(9B) of the 1948 Act based on a subsequent conviction of prior serious criminal conduct cannot reasonably be seen as necessary for the protection of the integrity of the naturalisation process, in circumstances where the Minister was not required to assess the person's character as a precondition to the grant or conferral of citizenship. It follows that such a power is properly characterised as punitive and, as an exclusively judicial function, its conferral on the Minister is contrary to Ch III of the Constitution. Section 34(2)(b)(ii) of the 2007 Act is therefore invalid in its application to the appellant. 23. It was not suggested that s 34(2)(b)(ii) is inseverable or incapable of being read down so as not to exceed the legislative power of the Commonwealth: see e.g. Acts Interpretation Act 1901 (Cth), s 15A. The validity of s 34(2)(b)(ii) in its application to persons who were granted citizenship under s 13(1) of the 1948 Act was upheld by the High Court in Jones, and nothing in the present appeal detracts from that outcome. 24. Ground 1 of the appeal is allowed. The appellant is entitled to declarations that s 34(2)(b)(ii) of the 2007 Act does not validly apply to him, that the decision of the Minister on 22 June 2017 purporting to revoke his citizenship was beyond jurisdiction and a nullity, and that he is an Australian citizen. He is also entitled to consequential relief in relation to the purported decisions to cancel his ex-citizen visa, which he was never taken to have held under s 35(3) of the Migration Act. 25. Finally, for completeness, we note that the written submissions filed by the Minister on the appeal alluded to the fact that the written application for citizenship made by the appellant's mother failed to disclose several offences of which the appellant had been convicted prior to the date of application and some criminal proceedings against the appellant that were pending as at the date of application. Nevertheless, the decisions of both the Minister and the Tribunal to revoke the appellant's citizenship were based on s 34(2)(b)(ii) of the 2007 Act in the light of the appellant's subsequent conviction of rape, and no question arises on this appeal of the possible exercise of a power to revoke citizenship on any other basis (such as misrepresentation or concealment). Indeed, in affirming the decision to revoke the appellant's citizenship based on s 34(2)(b)(ii), the Tribunal made a finding that no other provisions in s 34(2)(b) were engaged. Ground 2 1. Ground 2 assumes the valid conferral of power to revoke the appellant's citizenship under s 34(2)(b)(ii) of the 2007 Act, but challenges the validity of the purported exercise of that power by the Minister and by the Tribunal. 2. The appellant alleges that each of the Minister and the Tribunal failed lawfully to form the requisite state of satisfaction under s 34(2)(c) that it was contrary to the public interest for the appellant to remain an Australian citizen, and failed to give proper consideration to his representations as to why his citizenship should not be revoked. In particular, the appellant submits that the Minister and the Tribunal were required to consider the gravity and consequences of a decision to revoke his citizenship, as a result of which he would be taken to hold an ex-citizen visa that would be subject to mandatory cancellation under s 501(3A) of the Migration Act, exposing him to prolonged or indefinite detention and removal from Australia in potential breach of non-refoulement obligations. 3. The appellant's challenge is directed at both the decision made by the Minister to revoke his citizenship and the decision made by the Tribunal to affirm that decision, and his counsel accepted in submissions that it was necessary for him to establish jurisdictional error in each of those decisions in order to obtain the declaratory relief that he seeks, namely that he continues to be an Australian citizen. The nature of the relief sought in relation to the citizenship revocation decisions is driven by the fact that the proceedings were brought as an application for judicial review of the Tribunal's decision on 29 March 2021 not to revoke the decision to cancel the appellant's ex-citizen visa. In order to demonstrate that he was never taken to hold (nor to need) such a visa, the appellant needs to show that the Minister's purported decision to revoke his citizenship was a nullity and, while this would not itself have deprived the Tribunal of jurisdiction to review that decision, that the Tribunal also acted beyond jurisdiction in affirming the decision to revoke his citizenship. 4. The legal and practical effects of any decision to revoke the appellant's citizenship were addressed in submissions made to the Minister on his behalf. The appellant submitted to the Minister that it was clear on the available information that the revocation of his citizenship would result in "visa cancellation and the risk of indefinite immigration detention". 5. The Minister exercised his discretion to revoke the appellant's Australian citizenship on 22 June 2017, having been satisfied that the appellant was a person to whom s 34(2)(b)(ii) applied and that it would be contrary to the public interest for the appellant to remain an Australian citizen. In his statement of reasons, the Minister stated that he had taken into account the submissions and supporting documentation provided on the appellant's behalf, which were relevant to the public interest test under s 34(2)(c) and the exercise of the discretion under s 34(2). In relation to the discretionary considerations, the Minister relevantly took into account the impact of citizenship revocation on the appellant, including "on his ability to re-establish relationships with his immediate family and more generally within the Australian community, upon his release from prison". The Minister placed weight on the fact that the appellant would by operation of law become the holder of an ex-citizen visa. The Minister acknowledged that this visa would be subject to mandatory cancellation, rendering the appellant liable for removal from Australia, but stated that "the implications of that process would be considered at the appropriate time". 6. On 19 July 2018, the Tribunal affirmed the Minister's decision to revoke the appellant's Australian citizenship. In its reasons for decision, the Tribunal identified the issues whether it would be contrary to the public interest for the appellant to remain an Australian citizen and, if so, whether or not the discretion under s 34(2) of the 2007 Act should be exercised to revoke his citizenship: Tribunal's reasons at [36]. 7. The Tribunal considered the circumstances of the appellant's offending, which involved a violent rape of a 17-year old girl who was accosted by the appellant near a railway station before being taken to a secluded location where the appellant forced her to have intercourse and to perform oral sex on him. The Tribunal also considered the appellant's extensive criminal history since 2007. The Tribunal concluded that the appellant had "shown scant regard for upholding and obeying the laws of Australia", and that there was a substantial risk of him reoffending: Tribunal's reasons at [89]. After finding that it would be contrary to the public interest for the appellant to remain an Australian citizen, the Tribunal continued (at [90]): In making this finding, the Tribunal places significant weight on the fact that, had the Minister been in possession of the facts relating to Mr Galuak's serious and violent sexual offending (in April 2007) at the time he considered Mr Galuak's application for citizenship by conferral in November that year, it is reasonable to conclude that the application would have been refused. 1. The Tribunal proceeded to consider whether the discretion should be exercised to revoke the appellant's citizenship. The Tribunal noted that the focus of its examination of this question "shift[ed] slightly away from the broader public interest to how that principle intersects with the individual circumstances of the [appellant]": Tribunal's reasons at [92]. After considering those circumstances, the Tribunal relevantly stated (at [102]): The Respondent submitted that Mr Galuak is currently the holder of a non-citizen visa and, if the decision to revoke his citizenship is affirmed, he will be liable to have that visa cancelled under section 501CA of the Migration Act 1958 because of his substantial criminal record and the fact that he was sentenced to a period of imprisonment of more than 12 months. However, persons in this situation have the opportunity to make representations to the Minister who may then be satisfied that a cancellation decision be revoked. It is fruitless for the Tribunal to engage in speculation about what representations Mr Galuak might make, in this eventuality, or what might be the response of the Minister (see the apt remarks of Deputy President Hotop on the futility of the Tribunal speculating in regard to future cancellation of visas in Re Osorio and Minister for Immigration and Citizenship [2007] AATA 59, at [45]). In addition, questions of non-refoulement obligations may be relevant in this context or in any other claim the [appellant] may make for protection, but they are not directly relevant here. 1. The Tribunal acknowledged that it was "a difficult weighing exercise to balance the Tribunal's finding that it would be contrary to the public interest for [the appellant] to remain an Australian citizen and then whether the question of exercising the discretionary power to revoke is enlivened": Tribunal's reasons at [103]. Nevertheless, the Tribunal concluded (at [104]): The seriousness of [the appellant's] offending (commencing before his Australian citizenship was conferred but not at that time fully revealed), its sustained pattern and the substantial risk of him re-offending when released into the Australian community all lead to the conclusion that the Tribunal is satisfied that it was preferable to exercise the discretion to revoke the [appellant's] citizenship under section 34(2) of the Act. 1. Before the primary judge, the appellant submitted "that the Minister and the Tribunal, when considering whether or not to exercise the discretion to revoke his citizenship under s 34 of the Citizenship Act, were each required to consider the implications of any subsequent cancellation of the visa that he would thereafter be deemed to hold under s 35 of the Migration Act": J [78]. 2. The primary judge found that there was "no doubt that each of the Minister and the Tribunal correctly appreciated that revocation of the [appellant's] citizenship would (or, as was the case at the point that the matter came before the Tribunal, did) result in his being deemed to hold an ex-citizen visa under the Migration Act", and that "there might be consequences for the [appellant] arising from the cancellation of the visa that he would be (or was) deemed to hold following the revocation of his citizenship": J [73], [74] (emphasis in original). 3. However, the primary judge did not accept that the potential implications of visa cancellation were direct consequences of the revocation of his Australian citizenship which were required to be taken into account when exercising the power conferred by s 34(2) of the 2007 Act, whether in considering the public interest under s 34(2)(c) or in exercising the discretion whether or not to revoke citizenship: J [59], [67]-[68], [79]. 4. In so far as it was necessary for the Minister and the Tribunal to address any matters in relation to the visa cancellation process that had been expressly advanced by the appellant, the primary judge rejected the appellant's submission that the Minister and the Tribunal were obliged to form their own views "as to whether or not the implications to which he had adverted would in fact arise in the event that he were subject to the process of visa cancellation": J [87]. The primary judge stated (at [88]-[89]): Consideration of what the [appellant] had advanced did not require that any such views be arrived at. It was open both to the Minister and, later, to the Tribunal to resolve that the implications of visa cancellation, whatever they might be, were not matters that should bear upon the exercise of their discretion under the Citizenship Act. It was open to the Minister and the Tribunal to proceed on the basis that those implications "…could be assessed to an extent and in a manner that they considered appropriate and sufficient to deal with the claim, namely in accordance with the specific mechanism chosen by Parliament…": [Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at [38] (Kiefel CJ, Keane, Gordon and Steward JJ)]. In the present case, that mechanism is provided for by the Migration Act (at least by s 501CA, and more broadly by the possibility that the [appellant] might apply for and be granted a protection visa). That is what both the Minister and the Tribunal appear here to have done. At the very least, no inference can properly be drawn to the contrary (as the [appellant's] success on this contention necessarily requires). Rather than make assessments of their own as to the veracity and significance of what the [appellant] had put to them (specifically regarding his fears about indefinite detention and the dangers of returning to South Sudan), the Minister and the Tribunal preferred instead to allow those analyses to be deferred until such time as they might arise for consideration under other—and, arguably, more tailored—statutory processes. Doing so did not involve any failure to consider that which the [appellant] had advanced. 1. In Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, a majority of the High Court held that it was open to a delegate of the Minister, in exercising the power conferred by s 501CA(4) to revoke a visa cancellation decision made under s 501(3A) of the Migration Act, to defer assessment of whether the former visa holder was owed non-refoulement obligations on the basis that it was open to that person to make an application for a protection visa: at [9], [30] (Kiefel CJ, Keane, Gordon and Steward JJ), [47] (Gageler J). Thus, although the delegate was required to engage with any representations made by the former visa holder that included non-refoulement claims, one available means of considering those claims was to proceed on the basis that non-refoulement obligations may be assessed "in accordance with the specific mechanism chosen by the Parliament for responding to protection claims in the form of protection visa applications": Plaintiff M1 at [38] (Kiefel CJ, Keane, Gordon and Steward JJ). The availability of that specific mechanism provided "a reasonable and rational justification for not giving weight to potential non-refoulement obligations as 'another reason' for revoking" a mandatory cancellation decision made under s 501(3A) of the Migration Act: Plaintiff M1 at [38]. The delegate was nevertheless required to take into account the alleged facts underpinning any non-refoulement claim in so far as they were relied upon in support of there being "another reason" why the cancellation decision should be revoked under s 501CA(4): Plaintiff M1 at [39]. 2. The primary judge relied on the decision in Plaintiff M1 by analogy in rejecting the appellant's submission that the Minister and the Tribunal had expressly "avoided" or "evaded" any consideration of his representations regarding the implications of the cancellation of any ex-citizen visa that he may be taken to hold, and his potential subjection to prolonged or indefinite detention. Thus, the primary judge considered that it was open to the Minister and the Tribunal, when exercising the power to revoke the appellant's citizenship under s 34(2) of the 2007 Act, to defer any analysis of such implications to the specific statutory processes governing visa cancellation under the Migration Act: J [88]-[89], [92]. 3. The appellant submitted that, in considering whether it would be contrary to the public interest for him to remain an Australian citizen for the purposes of s 34(2)(c) of the 2007 Act, each of the Minister and the Tribunal had not taken into account that he would be granted an ex-citizen visa under s 35 of the Migration Act and that such a visa would inevitably be cancelled under s 501(3A) of the Migration Act. While it was theoretically possible that the appellant could apply for another visa, the appellant submitted that it was "inconceivable" that he would be granted such a visa in the light of the findings on which the citizenship revocation and visa cancellation decisions were based: see e.g. WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 463 at [124] (Kenny and Mortimer JJ). Accordingly, the appellant submitted that the consequences of the revocation of the appellant's citizenship and the cancellation of his ex-citizen visa were extreme, in that he would either be removed from Australia or would remain in immigration detention for a prolonged or indefinite period. 4. It is common ground that, although the appellant was once the holder of a Special Humanitarian visa, a "protection finding" has not been made for the appellant with respect to South Sudan for the purposes of s 197C(3) of the Migration Act. In any event, the citizenship revocation decisions were made by the Minister and the Tribunal before the commencement of s 197C(3) (see the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)). At the time that those decisions were made, any question involving potential non-refoulement obligations in relation to the appellant's removal from Australia could be addressed, if at all, through the exercise of other statutory powers (including the possible grant of a protection visa or some other class of visa). The citizenship revocation decisions also pre-dated the High Court's decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005, which now establishes that there is no power to detain an unlawful non-citizen in respect of whom there is a statutory duty to remove him or her from Australia in circumstances where there is no real prospect of such removal becoming practicable in the reasonably foreseeable future. 5. The appellant's argument in support of Ground 2 has several limbs. 6. First, the appellant contends that the Minister and the Tribunal each failed properly to appreciate the nature and gravity of citizenship revocation when considering whether or not it was contrary to the public interest for the appellant to remain an Australian citizen for the purposes of s 34(2)(c) of the 2007 Act. The appellant submitted that the Minister and the Tribunal focused on the nature of the appellant's offending and the protection of the Australian community, as would usually be relevant in the context of cancelling a visa held by a non-citizen, and did not address why it was in the public interest to take the extraordinary step of expelling the appellant from the Australian community by revoking his citizenship, or the "human consequences" of such a decision (referring to Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 at [3] (Allsop CJ)). In particular, the appellant noted that cessation of citizenship has been described as the "total destruction of the individual's status in organized society": see Alexander at [172] (Gordon J), [248] (Edelman J); Benbrika at [22] (Kiefel CJ, Gageler, Gleeson and Jagot JJ). 7. Secondly, the appellant submits that the Minister and the Tribunal failed to consider the legal consequences of revocation of the appellant's citizenship, including the potential cancellation of the non-citizen visa that he would be taken to hold, as a mandatory relevant consideration in forming the requisite state of satisfaction under s 34(2)(c) of the 2007 Act. In support of this submission, the appellant seeks to rely on the decision in Minister for Immigration and Border Protection v Egan (2018) 261 FCR 451 at [16]-[22] (Perram J, with whom Allsop CJ and Jagot J agreed). The appellant argued that these legal consequences were not addressed at all by the Minister or by the Tribunal in the public interest analysis for the purposes of s 34(2)(c), which was a necessary and anterior step to enliven the discretion to revoke the appellant's citizenship under s 34(2) of the 2007 Act. In treating these consequences as "matters that are hypothetical or arise contingently upon other discretionary excursions under the Migration Act" (J [67]), the primary judge failed to appreciate that the appellant's vulnerability to visa cancellation and his exposure to detention and removal were caused by the decision to revoke his Australian citizenship. 8. Thirdly, the appellant submits that, in exercising the discretion whether to revoke the appellant's citizenship, both the Minister and the Tribunal failed to consider the appellant's representations about the prospect of indefinite detention as a reason not to revoke his citizenship. The appellant noted that, while the Minister and the Tribunal each referred to the possible cancellation of the ex-citizen visa held by the appellant, there was no express consideration in the Minister's reasons or in the Tribunal's reasons of the appellant's representations concerning indefinite detention. The appellant sought to distinguish the reasoning in Plaintiff M1 on that basis. Further, the appellant submitted that it is not permissible to defer consideration of submissions about non-refoulement when deciding whether or not to revoke a person's citizenship. The appellant submitted that the visa cancellation and revocation processes under ss 501(3A) and 501CA of the Migration Act are not subsequent steps in the same statutory process as the revocation of citizenship, so that it cannot be said that s 34(2) reveals a legislative intention that non-refoulement obligations or the prospect of indefinite detention may be deferred for consideration under the Migration Act. 9. The Minister submitted that there was no basis to infer that the Minister and the Tribunal did not appreciate the serious nature and gravity of the revocation of citizenship, nor that the Minister and the Tribunal did not understand that the consequences of a decision to revoke citizenship included the grant of an ex-citizen visa which would be liable to cancellation. The fact that such consequences were addressed in the context of the exercise of the discretion whether or not to revoke citizenship did not, in the Minister's submission, support an inference that such matters were overlooked in the assessment of the public interest for the purposes of s 34(2)(c) of the 2007 Act: compare J [73]. The Minister submitted that the direct legal consequences of a decision to revoke the appellant's citizenship did not include removal in breach of non-refoulement obligations nor being held in immigration detention for a prolonged or indefinite period; rather, such matters were speculative future consequences governed by a different statutory regime, and were not mandatory relevant considerations in the exercise of the power conferred by s 34 of the 2007 Act. 10. In relation to the first limb of the appellant's argument, both the Minister and the Tribunal were cognizant of the nature and gravity of the power to revoke citizenship under s 34(2) of the 2007 Act. The Minister expressly stated that he had taken into account the appellant's written representations, in which it was noted that the power to revoke citizenship is "an extraordinary power which has historically been used sparingly", referring to TRHL v Minister for Immigration and Border Protection [2015] AATA 803 at [23]. The Tribunal quoted and affirmed the observations made in TRHL, adding that it was significant that the power to revoke citizenship had not been delegated by the Minister, "reflecting the position of successive Australian governments that revocation of citizenship under section 34(2) is a discretionary power which is to be used only in particular and special circumstances": Tribunal's reasons at [64]-[65]. Accordingly, while the reasons of the Minister and the Tribunal focused on the nature of the appellant's offending and the risk of him reoffending, that was not to the exclusion of a consideration of the impacts of the decision on the appellant. On balance, it is not possible to infer that the Minister or the Tribunal misunderstood the nature of the power conferred by s 34(2) of the 2007 Act, or failed to have regard to the consequences for the appellant of a decision to revoke his citizenship. 11. Nor can it be said that the Minister or the Tribunal failed to have regard to the legal consequences of citizenship revocation. In so far as Egan establishes that the deemed grant of an ex-citizen visa under s 35(3) of the Migration Act is a mandatory relevant consideration when exercising the power to revoke citizenship under the 2007 Act, each of the Minister and the Tribunal recognised that such a visa would be taken to be granted to the appellant upon the revocation of his citizenship: see Minister's reasons at [24]; Tribunal's reasons at [102]. 12. In Egan, the Tribunal erred by proceeding on the basis that the revocation of the respondent's citizenship would lead to his removal from Australia, and failing to have regard to the deemed grant of an ex-citizen visa as a "direct consequence" of the revocation of citizenship. The Court held that the grant of an ex-citizen visa was a mandatory relevant consideration in reaching a state of satisfaction as to whether it would be contrary to the public interest for a person to remain an Australian citizen for the purposes of s 34(2)(c) of the 2007 Act: see Egan at [21]. At least to that extent, the 2007 Act and the Migration Act operated "closely in tandem" or "in parallel": Egan at [21]. However, it was unnecessary for the Court to express a concluded view on whether the potential for cancellation of the ex-citizen visa under s 501 of the Migration Act was also a mandatory relevant consideration under s 34(2) of the 2007 Act: Egan at [22]. 13. On the facts of the present case, the appellant does not contend that the Minister or the Tribunal failed to have regard to the fact that the appellant would be granted an ex-citizen visa on the revocation of his citizenship. In so far as it was suggested that the Minister and the Tribunal erred by addressing that consequence only in the context of the exercise of the discretion whether or not to revoke the appellant's citizenship, and not in forming the requisite state of satisfaction under s 34(2)(c) that it would be contrary to the public interest for the person to remain an Australian citizen, we do not consider that it is appropriate to quarantine the relevant paragraphs in the reasons for decision in this fashion. 14. It may be noted that the written representations made on behalf of the appellant to the Minister themselves addressed the legal consequences of citizenship revocation as a discretionary reason not to revoke the appellant's citizenship. In considering the exercise of his discretion, the Minister placed weight on the fact that the appellant "would by operation of law become the holder of an ex-citizen visa" if his citizenship were revoked: Minister's reasons at [24]. Similarly, the Tribunal acknowledged that the appellant was currently the holder of a "non-citizen visa": Tribunal's reasons at [102]. The fact that a decision-maker expresses his or her reasons "sequentially" does not mean that each factual issue has been decided in isolation from the others, and without regard to the evidence as a whole: see e.g. Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165 at [14] (Gleeson CJ). Unlike in Egan, neither the Minister nor Tribunal assumed that the appellant would necessarily be removed from Australia as a result of the revocation of his citizenship. In the circumstances of the present case, it cannot be inferred that either the Minister or the Tribunal overlooked that the appellant would be taken to hold an ex-citizen visa when considering whether it would be in the public interest for him to remain an Australian citizen or when exercising the discretion to revoke his citizenship. 15. The main focus of the appellant's argument was that the Minister and the Tribunal failed to take into account the vulnerability to cancellation of any ex-citizen visa that the appellant would be taken to hold, and the practical consequences for the appellant's detention and removal from Australia, as legal consequences of a decision to revoke his citizenship. 16. There is no doubt that both the Minister and the Tribunal recognised that the ex-citizen visa that would be granted to the appellant upon the revocation of his citizenship would itself be subject to mandatory cancellation under the Migration Act: Minister's reasons at [24], Tribunal's reasons at [102]. We agree with the primary judge that the consequences flowing from the potential (or likely) cancellation of the appellant's ex-citizen visa under s 501(3A) of the Migration Act, or any potential (or likely) decision not to revoke that cancellation decision under s 501CA(4) of the Migration Act, were neither direct nor immediate legal consequences of the revocation of the appellant's citizenship that the Minister or the Tribunal were required to take into account in the exercise of the power conferred by s 34(2) of the 2007 Act. 17. To the extent that any such consequences, such as detention or removal from Australia, were raised by representations made by the appellant to the Minister or in evidence or submissions made to the Tribunal, it was open to the Minister and the Tribunal to consider and deal with those representations or submissions on the basis that they could be addressed in subsequent statutory processes under the Migration Act. 18. For present purposes, it may be assumed that the Minister and the Tribunal were obliged to engage with the representations or submissions made by the appellant when exercising the power conferred by s 501CA(4), whether as relevant considerations or as an aspect of procedural fairness: compare Plaintiff M1 at [24]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ). Neither the Minister nor the Tribunal overlooked the fact that the revocation of the appellant's citizenship rendered him vulnerable to possible visa cancellation and removal from Australia. However, they did not seek to pre-empt or predict the way in which the powers conferred by the Migration Act might be exercised. This is consistent with the approach adopted in Plaintiff M1, although that case was concerned with the exercise of the power to revoke visa cancellation and with a deferral of consideration of non-refoulement to a subsequent protection visa process. There is no reason why a different approach should apply in the context of a decision to revoke citizenship under the 2007 Act, in circumstances where the future detention or removal of the appellant will be governed by a different statute. 19. While referring to the appellant's liability for removal and potential questions of non-refoulement obligations, neither the Minister nor the Tribunal dealt expressly with the implications of visa cancellation for the appellant's future detention under ss 189 and 196 of the Migration Act. Nevertheless, it is implicit that the Minister and the Tribunal proceeded on the basis that any such consequences were similarly governed by separate statutory processes. In any event, to the extent that the appellant contends that the Minister or the Tribunal failed to have regard to his representations about indefinite detention, it may be doubted that this would be capable of giving rise to legal error in the light of the High Court's subsequent decision in NZYQ, which now establishes that there is no power to detain the appellant for so long as there is no realistic prospect of his removal becoming practicable in the reasonably foreseeable future (cf. a situation in which a decision-maker had proceeded on an erroneous understanding that the refusal or cancellation of a visa could result in indefinite detention: e.g. AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 304 FCR 586 at [30]-[34], [49], [56] (Murphy, Stewart and McEvoy JJ)). 20. Finally, it may be recalled that the High Court in Jones emphasised that the power to revoke citizenship under s 34(2) of the 2007 Act, including the public interest requirement in s 34(2)(c), must be exercised to further the purpose of protecting the integrity of the naturalisation process, and not for any extraneous and improper purpose such as retribution, denunciation or deterrence: Jones at [54] (Kiefel CJ, Gageler, Gleeson and Jagot JJ), [107], [171], [173], [181] (Edelman J), [199], [201] (Steward J). In oral submissions, counsel for the appellant disclaimed any argument that the Minister or the Tribunal had exercised the power to revoke the appellant's citizenship for an improper purpose. Rather, reliance was placed on Jones at [54] "only to show why and how the Minister needed to form the state of satisfaction about the public interest" (Transcript, p 85, lines 4-5). In any event, in terms of the exercise of power (as opposed to the validity of the statutory provision), the requisite connection to the purpose of protecting the integrity of the naturalisation process is arguably met by the Tribunal's factual finding that the Minister would have refused the appellant's citizenship application if he had been in possession of the facts relating to his serious and violent sexual offending: Tribunal's reasons at [90]. 21. For the above reasons, Ground 2 is dismissed. Ground 3 1. Ground 3 assumes that the appellant's citizenship was validly revoked. This ground is based on the misidentification of the appellant's ex-citizen visa in the cancellation decision made under s 501(3A) of the Migration Act. The appellant submits that, as a result of that misidentification, the Minister purported to cancel a non-existent visa. He submits there was therefore no jurisdiction under s 501CA(4) to decide not to revoke the cancellation of his ex-citizen visa, and he therefore remains a lawful non-citizen. 2. The appellant relies on a line of authority to the effect that a misunderstanding by the decision-maker as to the class of visa held by a non-citizen can vitiate a purported exercise of power to cancel the visa that is in fact held by the non-citizen. 3. In Schwart, the Minister made a decision purporting to cancel the respondent's "Subclass 155 – 5 Year Resident Return Visa", in circumstances where the respondent in fact held a "transitional (permanent) visa" which, unlike a Subclass 155 visa, did not entitle him to travel to and enter Australia. The Full Court (Tamberlin, Mansfield and Emmett JJ) rejected the Minister's contention that the decision should be construed as cancelling "the only visa held by the respondent" at the time of decision: Schwart at [30]-[31]. The Court stated (at [32]-[33]): The result may appear to be a technical one. However, the material before the Court is an unfortunate example of sloppiness on the part of Commonwealth administrators. Where the entitlement of an individual to remain in Australia is in issue in the making of a decision, the Australian community is entitled to expect that the documentation in relation to the making of such a significant decision is prepared with care. The material in question has not been prepared with care. It is not possible to be certain that the Minister understood, when signing the Decision Page, what he was doing. It may well be that he was well aware that the respondent had been resident in Australia for eighteen years and had, under the terms of a visa held by him, a right of indefinite residence. However, at no stage does the Memorandum refer to a "transitional (permanent) visa" that the respondent is deemed to hold pursuant to reg 4(1) of the Transitional Regulations. If the Minister exercises the important discretionary power conferred by s 501, there should be no doubt that that is what he is doing. (Emphasis added.) 1. In Sales, the Minister had purported to cancel a transitional (permanent) visa that had never been granted to or held by the appellant, as a result of which an absorbed person visa that was in fact held by the appellant was said to have been automatically cancelled by operation of s 501F(3) of the Migration Act. The Court rejected an argument that this mistake could be disregarded, in circumstances where "[t]he Minister's attention was directed specifically and in unmistakeably clear terms to the proposal that a transitional (permanent) visa should be cancelled with the 'automatic' result that an absorbed person visa would also be cancelled; not by decision of the Minister, but rather by operation of s 501F of the current Act": Sales at [96] (Buchanan J, with whom Gyles and Graham JJ agreed). Because the appellant did not hold a transitional (permanent) visa, the decision purporting to cancel such a visa was of no legal effect, and there was no consequential effect on the appellant's absorbed person visa. 2. The decision in Schwart was followed and applied, in the context of mandatory cancellation decisions made under s 501(3A) of the Migration Act, in Anderson v Assistant Minister for Immigration and Border Protection [2018] FCA 888 at [44] (Reeves J) and EUF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 436 at [38] (Judge Driver). 3. In our view, the application of Schwart turns on the proper construction of the reasons for the visa cancellation decision. Having regard to the decision record considered in Schwart, it was "not possible to be certain that the Minister understood, when signing the Decision Page, what he was doing": Schwart at [33]. Similarly, in Sales, the briefing material had unequivocally misdirected the Minister as to the nature of the visa that was the subject of the cancellation decision. Further, there were substantive differences in the rights conferred by a visa of the kind that was purportedly cancelled and the class of visa that was actually held by the non-citizen. 4. The Minister sought to distinguish the present case from Schwart and Sales on the basis that it is involves a mandatory cancellation decision under s 501(3A), as opposed to the exercise of a discretion to refuse or cancel a visa under s 501(2) or (3) of the Migration Act. In some respects, the power under s 501(3A) is indifferent to the nature or description of the particular visa that is held by the non-citizen. A visa that has been granted to a person must be cancelled under s 501(3A) if the Minister is satisfied that the person does not pass the character test based on a substantial criminal record under specified provisions, and is currently serving a sentence of imprisonment on a full-time basis in a custodial institution. Those criteria do not turn on the particular class of visa that was granted to the person, and nor does s 501(3A) involve the exercise by the Minister of any discretion that might be affected by the nature of the visa held by the non-citizen. 5. Nevertheless, each of Anderson and EUF20 proceeded on the basis that an exercise of power under s 501(3A) in relation to a visa that had been granted to a person was conditioned on that person in fact having been granted such a visa. In other words, the existence of that particular visa was treated as a jurisdictional fact. On that basis, a decision to cancel one visa that is erroneously assumed to have been granted to a non-citizen cannot be treated as effective to cancel a different visa that is in fact held by the non-citizen. Nor can such a decision be saved on the basis that the error was not material to the decision in circumstances where, but for the error, the decision would have been different: see J [119]. A decision made under s 501(3A) to cancel "a visa that has been granted to a person" cannot be equated with a decision to cancel any visa that has in fact been granted to that person. It may be observed that, while the power to cancel a visa under s 501(3A) is mandatory, s 501CA(4)(b)(ii) confers a broad discretionary power to revoke that original decision if the Minister is satisfied that there is another reason why it should be revoked, and it is difficult to see why a correct understanding of the visa that was granted to the person would not be central to the exercise of that revocation power. 6. Ultimately, it is unnecessary to express a concluded view about the correctness of Anderson and EUF20. As the primary judge found, the delegate was not in fact under any misapprehension as to the visa that was being cancelled under s 501(3A), namely, the visa that was granted to the appellant on 22 June 2017, when the revocation of his citizenship took effect. The misdescription of that visa as a "Class AQ" visa does not negate the delegate's intention, which is clearly apparent from the context, to cancel the visa that had been granted to the appellant under s 35 of the Migration Act. We agree with the reasons given by the primary judge for concluding that, unlike the Minister in Schwart, the delegate "knew exactly what he or she was doing: namely, cancelling the visa that the [appellant] was granted on 22 June 2017 in consequence of the loss of his citizenship": J [117]. 7. Accordingly, Ground 3 is dismissed. Conclusion 1. The appeal is allowed on Ground 1. As we have held that there was no power to revoke the appellant's citizenship under s 34(2) of the 2007 Act, he remains an Australian citizen and is entitled to declaratory relief in such terms. 2. It follows that the appellant did not hold an ex-citizen visa, and that the decisions to cancel and not to revoke the cancellation of such a visa were affected by jurisdictional error and should be set aside. 3. The first respondent should pay the appellant's costs of the appeal. As the ground on which the appeal is upheld was not agitated before the primary judge, and the appellant has not been successful on his other grounds of appeal, no order should be made as to the costs of the proceedings below. I certify that the preceding one hundred and seventy-four (174) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Burley, O'Callaghan and Horan. Associate: Dated: 14 November 2024