Australian court restricts government citizenship powers

CANBERRA, Australia (AP) — Australia’s highest court ruled on Wednesday that a Cabinet minister unlawfully revoked the citizenship of an alleged Islamic State fighter in a landmark decision that limits how governments can deal the extremists.

The High Court, in a 6-1 judgment, restored Delil Alexander’s Australian citizenship which was withdrawn in July last year by then Home Secretary Karen Andrews.

Alexander, 35, born in Australia and a citizen of Turkish descent, is being held in a Syrian prison for terrorism. He left Australia for Turkey in 2013 and crossed the Syrian border before being arrested by a Kurdish militia in 2017.

Andrews revoked Alexander’s citizenship based on an Australian intelligence report that he had joined the Islamic State of Iraq and the Levant group and likely engaged in fighting and recruitment for the group extremist.

But the court ruled the power she used – Section 36B of Australia’s 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 Australian citizenship under a separate section in cases where a person has been sentenced to at least three years in prison for a crime which demonstrates that “the person has disavowed allegiance to the Australia”.

Rayner Thwaites, a constitutional law scholar at the University of Sydney, said the decision meant a government could no longer revoke Australian citizenship without involving a court.

“The orders in the case are that Section 36B is invalid, which would have reasonably direct ramifications for others,” Thwaites said.

The case has ramifications for anyone whose citizenship has been revoked under Section 36B, Thwaites added.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 citizenship revoked as a result of the ruling.

The previous Conservative coalition changed the law in 2015 to allow 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 of Lebanese descent. He lost his Australian citizenship in 2017 while fighting alongside the Islamic State group in Syria and has since died in combat.

Peter Dutton, the first Home Secretary to use the power, reported in 2018 that five other dual nationals had been stripped of Australian citizenship because of their overseas involvement with the Islamic State group.

Australia has been widely criticized for expecting other countries to take responsibility for extremists who often had little connection to their second nationality.

A centre-left Labor Party government came to power for the first time in nearly a decade in elections on May 21. New Attorney General Mark Dreyfus said his government would review the judgment and its implications in detail.

Dreyfus said the government has a range of measures to protect Australia from offshore threats, including so-called temporary exclusion orders which can prevent Australians from returning home for up to two years.

“It is important to note that there is no 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 could have been released last year if his Australian citizenship had not been revoked, Samin said.

“He has remained in detention ever since because the Syrian authorities are not releasing him to the Syrian community,” Samin told Australian Broadcasting Corp.

Alexander denied any involvement with the Islamic State group and told his sister he made a confession under torture, the lawyer said.

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