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Key decisions

  • Alexander v Minister for Home Affairs [2022] HCA 19

Constitutional law

Powers of the Commonwealth Parliament – denationalisation

In Alexander v Minister for Home Affairs [2022] HCA 19 (8 June 2022) the High Court was required to determine the validity of s 36B of the Australian Citizenship Act 2007 (Cth) (‘Citizenship Act’).

Section 36B of the Citizenship Act empowers the Minister to denationalise an Australian citizen if the Minister is satisfied that the person has ‘repudiated their allegiance to Australia’ by having engaged in ‘foreign incursions and recruitment’ (at [20]). Before the Minister can make such a determination, the Minister must also be satisfied that it would be contrary to public interest for the person to remain an Australian citizen and the person would not be rendered stateless by reason of the Minister’s determination. Section 36B, and its companion provisions, was introduced into the Citizenship Act in 2020 – notably after the events relied on by the Minister to denaturalise Alexander had occurred.

The plaintiff (‘Alexander’) was born in Australia in 1986 and acquired Australian citizenship. He also acquired Turkish citizenship by descent because his parents were Turkish citizens. In April 2013, Alexander left Australia for Turkey. After arriving in Turkey, Alexander travelled to Syria where he married his wife. The Australian Security Intelligence Organisation (‘ASIO’) reported it was likely that, by August 2013, Alexander had joined a terrorist organisation, ISIS, and engaged in foreign incursions and recruitment in Syria. In 2017, Alexander was apprehended and charged with offences against the Syrian Penal Code. In 2019, Alexander was convicted and sentenced by a Syrian Court to a term of imprisonment for 15 years. That term of imprisonment was subsequently reduced to five years following Alexander’s admissions during interrogation, allegedly under torture. Alexander was later pardoned but remained in detention because, among other things, he could not be released into the Syrian community or repatriated to Turkey or Australia (at [8]).

After Alexander was detained in Syria, the Minister made several orders effectively preventing Alexander from re-entering Australia. On 2 July 2021, the Minister determined, pursuant to s 36B(1) of the Citizenship Act, that Alexander ceased to be an Australian citizen.

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