The Department of Home Affairs has overturned a decision to cancel the citizenship of a former Sydney man on death row in Iraq after it ruled the law used to strip him of his Australian citizenship was invalid.
The department has now revealed that 18 other Australians had their citizenship illegally revoked.
Guardian Australia reported in June that lawyers for Ahmad Merhi and his family believed the 2018 decision to cancel his citizenship after he had been sentenced to death by hanging was unlawful, and they appealed on his behalf to the Albanese government.
The office of the home affairs minister, Clare O’Neil, did not respond at the time, nor answer questions from the Guardian.
But on 24 November, a deputy secretary at the home affairs department wrote to Merhi via his lawyers to inform him that the commonwealth had considered its position in relation to the laws used to cancel Merhi’s citizenship, former section 35 of the Australian Citizenship Act 2007.
“The commonwealth’s position is that former section 35 of the act was invalid and that you remain an Australian citizen,” the letter said.
The letter also made clear that the decision about the validity of the laws occurred independently of the high court ruling in the case of Delil Alexander, a Turkish citizen whose Australian citizenship was cancelled in July 2021.
The decision in that case related to a different section of the same act used to cancel Merhi’s citizenship.
Merhi’s lawyer, Mohammad Khan, has contacted the Iraqi embassy since the government told him the laws were invalid, in an urgent attempt to have a stay granted in relation to the execution.
Khan says Iraq is routinely executing those who have been sentenced to death with little warning, and he has also asked the Australian government to assist Merhi, given the recent change in his citizenship status.
Merhi travelled to Syria in 2014 and was captured in the country in 2017. He was then transferred by US forces to Iraq, one of a series of prisoner transfers that concerned human rights groups.
In Iraq, Merhi says he was coerced into confessing to terrorism charges and in November 2018 he was sentenced to death by hanging.
According to a translation of Iraqi court documents, the charges included that he was an Islamic State member being paid a monthly bond, that he completed weapons training, and was assigned to its “Health Bureau”. Merhi, 30, claims he was wrongfully convicted.
His citizenship was cancelled the month after he was sentenced. Merhi says he is eligible for Lebanese citizenship but he has never held it.
A department spokesperson on Tuesday said: “The commonwealth accepts that in light of the high court’s judgment, sections 33AA and 35 of the Australian Citizenship Act 2007 are also invalid. As a result, the commonwealth’s position is that the cessation of Australian citizenship for 19 dual citizens under those provisions was invalid and they never ceased to be citizens.”
The former Melbourne woman Zehra Duman launched a high court challenge to her citizenship cancellation under former section 35, but, unlike Merhi, she held citizenship of another country, Turkey, at the time the cancellation was made.
Guardian Australia is also aware of another Melbourne woman detained in Syria with her family who also had her Australian citizenship cancelled under former section 35, with the government at the time claiming she was also a citizen of Lebanon.
The laws were introduced under Tony Abbott’s prime ministership but enacted in December 2015, early in the government of Malcolm Turnbull.
Automatic loss of citizenship could occur if the person was older than 14, would not be rendered stateless and either fought for a declared terrorist organisation or engaged in “disallegient” conduct.
But concerns were raised about the counterproductive consequences of the laws, including by the Independent National Security Legislation Monitor, and they were amended in 2020.