A suspected Australian ISIS terrorist has had his Australian citizenship returned after the High Court ruled that the government could not revoke a person’s citizenship if they are accused of terrorism-related conduct overseas.
The ruling is expected to pave the way for up to 20 other convicted or suspected ISIS fighters to have their citizenship effectively reinstated.
Australian-Turkish man Delil Alexander, 35, won his appeal against a government’s decision to cancel his citizenship in 2021.
Alexander left Australia for Turkey on April 16, 2013, but just over two weeks later, he was married in Syria.
The Australian Security Intelligence Organisation (ASIO) alleged that he had become a member of the terrorist group Islamic State in August 2013 after travelling to Syria.
A Kurdish militia arrested Alexander, and in 2019 he was sentenced to 15 years in prison by a Syrian court after being charged with unspecified offences. But later, his imprisonment was reduced to five years.
The case was brought on his behalf by Alexander’s family, who believed that he would have a higher chance of getting out of Syria if he is an Australian citizen.
The High Court ruled the decision by the Home Affairs Minister unconstitutional in July 2021 under section 36B of the Australian Citizenship Act 2007, which also applies to children aged 14 to 18. However, the Court also noted that he was accompanied by a group that has close ties to a known Australian Islamic State member.“That sanction by the parliament may be imposed only upon satisfaction of the minister that Mr Alexander engaged in conduct that is so reprehensible as to be deserving of the dire consequence of deprivation of citizenship and the rights, privileges, immunities and duties associated with it,” the lead judgement in the decision said.
“The power to determine the facts which enliven the power to impose such a punishment is one which, in accordance with [Chapter 3] of the Constitution, is exercisable exclusively by a court that is a part of the deferral judicature.”
Six of the seven justices agreed, with only one justice dissenting.
Meanwhile, Opposition Leader Peter Dutton has urged the Labor government to work out a legislative response, “if not, there will be dire consequences, and that’s the last thing that I want to see.”
“These people will do great harm given the opportunity,” he told Sydney radio 2GB on Thursday.
But Mat Tinkler, CEO of Save the Children Australia, said that if the government can strip Australians of their citizenship, it would “not in the best interests of dependent children.”
“The children languishing in camps in Syria are some of the most vulnerable in the world and should not be made to pay for any alleged actions of their parents.”
Government lawyers argued the minister met the three conditions in the decision: a person has engaged in the requisite conduct; the conduct demonstrates the person has repudiated their allegiance to Australia, and it would be contrary to the public interest for them to remain an Australian citizen.
In introducing the changes in 2018, former attorney-general Christian Porter argued that stripping Australian citizenship of people who sought to do the nation harm was an “integral part of our ongoing response to international violent extremism and terrorism.”
