Australia’s highest court on Wednesday found a Cabinet minister illegally canceled a suspected Islamic State group fighter’s citizenship in a landmark ruling that curtails how governments can deal with extremists.
The High Court, in a 6-to-1 judgment, restored Delil Alexander’s Australian citizenship that was removed in July last year by the then-Home Affairs Minister Karen Andrews.
The 35-year-old Alexander, who was born in Australia and has Turkish citizenship by descent, is in a Syrian prison on terrorism convictions. He left Australia for Turkey in 2013 and crossed the Syrian border before he was arrested by a Kurdish militia in 2017.
Andrews canceled Alexander's citizenship based on an Australian intelligence report that he had joined the group Islamic State of Iraq and the Levant and had likely engaged in fighting and recruiting for the extremist group.
Power used was unconstitutional
But the court ruled that the power she used — section 36B of the Australian Citizenship Act — was unconstitutional because it gave the minister the power of a court to determine criminal guilt.
A minister would still be able to revoke an Australian’s citizenship under a separate section in cases where an individual had been sentenced to at least three years in prison for a crime that demonstrates the “person has repudiated their allegiance to Australia.”
Rayner Thwaites, a Sydney University constitutional law academic, said the ruling meant a government could no longer cancel Australian citizenship without involving a court.
"The orders in the case are that section 36B is invalid, so that would have reasonably direct ramifications for others,” Thwaites said.
Ramifications for those who lost citizenship
The case has ramifications for anyone whose citizenship has been revoked under section 36B, Thwaites added. It’s unclear how many people could have their citizenships returned due to the ruling.
The previous conservative coalition changed the law in 2015 to enable dual nationals to lose their citizenship rights for actions contrary to their allegiance to Australia.
The first target was Sydney-born convicted terrorist Khaled Sharrouf who was also Lebanese by descent. He lost his Australian citizenship in 2017 while he was fighting alongside the Islamic State group in Syria and has since died in combat.
Peter Dutton, the first Home Affairs minister to use the power, reported in 2018 that another five dual-nationals had been stripped of Australian citizenship because of their involvement overseas with the Islamic State group.
Australia was widely criticised for expecting other countries to take responsibility for extremists who often had little connection to their second nationality.
A center-left Labor Party government came to power for the first time in almost a decade at elections on May 21. The new Attorney-General Mark Dreyfus said his government would examine the judgment ands its implications in detail.
Dreyfus said the government had a range of measures to protect Australia from offshore threats including so-called temporary exclusion orders that can prevent Australians from returning home for up to two years.
“It is important to note that there is not threat to Australia as a result of today’s decision,” Dreyfus said in a statement.
Alexander’s case was brought to court by his sister.
The family’s lawyer Osman Samin said Alexander’s 15-year sentence had been reduced to five years. Alexander would have been eligible for release last year if his Australian citizenship hadn’t been canceled, Samin said.
“He’s remained in custody ever since because the Syrian authorities won’t release him into the Syrian community,” Samin told Australian Broadcasting Corp.
Alexander denied involvement with the Islamic State group and told his sister he made confessions under torture, the lawyer said.
