FQHD, by his Mother and Minister for Immigration and Multicultural Affairs (Citizenship)

[2024] AATA 3116

FQHD, by his Mother and Minister for Immigration and Multicultural Affairs (Citizenship) [2024] AATA 3116 (3 September 2024)

Division:GENERAL DIVISION

File Number:          2023/8335

Re:FQHD, by his Mother

APPLICANT

AndMinister for Immigration and Multicultural Affairs

RESPONDENT

File Number:          2024/1077

Re:LHZR, by his Mother

APPLICANT

AndMinister for Immigration and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:3 September 2024

Place:Hobart

Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975 –

1.        The decisions in applications 2023/8335 and 2024/1077 are set aside.

2.        In substitution therefor, the Tribunal decides:

(a)The discretion in s 24(2) of the Australian Citizenship Act 2007 (Cth) to refuse citizenship to FQHD should not be exercised.

(b)The discretion in s 24(2) of the Australian Citizenship Act 2007 (Cth) to refuse citizenship to LHZR should not be exercised.

(c)The matters are each remitted to the Respondent with this direction, for the completion of any other outstanding requirements for the granting of Australian citizenship by conferral.

..................................[signed]......................................

Senior Member D. J. Morris

Catchwords

CITIZENSHIP – Australian citizenship by conferral – applicants are citizens of the Republic of Singapore, minors and Australian permanent residents – where responsible parent lodged applications for three minor children at same time – where applicants met certain requirements – where responsible parent did not meet general residence requirement under Act at time applications were lodged – where Singapore does not permit its citizens to hold another citizenship – where application for citizenship for two children rejected by delegates of respondent on policy grounds – responsible parent seeks review by tribunal – desirable to consider the two applications together – status of the policy – desirability of applying policy for consistency of decision-making – where applications for three minor children all lodged at same time - where application for citizenship of one child was approved – where respondent submits error – whether application of policy would lead to unfair outcome – policy found to be reasonably applied – in this case application of ministerial policy would work an injustice – desirable for all three minor children to be treated the same – each decision under review is set aside and new decisions substituted with direction

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

Cases

Minister for Home Affairs v G and Anor (2019) 266 FCR 569
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Secondary Materials

Constitution of the Republic of Singapore, Part 10 - Citizenship
United Nations Convention on the Rights of the Child (New York, 20 November 1989). Entered into force, generally 2 September 1990. Entry into force for Australia, 16 January 1991 ATS (1991) 4
Revised Australian Citizenship Procedural Instruction (CPI) 4 – Australian Citizenship by Conferral – Person under 18
Revised Australian Citizenship Procedural Instruction (CPI) 12 – Assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship
Revised Australian Citizenship Procedural Instruction (CPI) 13 – Best interests of the child assessments

The Shorter Oxford English Dictionary – Vol I – Clarendon Press; Oxford (1973)

REASONS FOR DECISION

Senior Member D. J. Morris

3 September 2024

1. On 2 August 2024, of its own motion, the Tribunal made orders under s 35(3) of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) prohibiting the publication of the names of the Applicants in these two applications. It is the practice of the Tribunal to protect the identify of minors. In this case they are brothers. The older of the two is aged 13 and will be known by the anonym ‘FQHD’, the younger is aged 11 and will be known as ‘LHZR’. Neither party objected to the making of this order.

2. The applications were heard together on 2 August 2024 by video link, as is permitted by

   
   

   s 33A of the AAT Act. The Applicants were represented by their mother, who will be called Dr A in these reasons. The Respondent was represented by Ms Megan Peake, of Clayton Utz.

3. The Tribunal had regard for the documents listed in the annexure to these reasons. The Tribunal also had a Statement of Facts, Issues and Contentions of the Respondent, submitted on 4 June 2024.

4. At the conclusion of the hearing, the Tribunal asked the Respondent to provide details of an application for Australian citizenship by conferral lodged by Dr A on behalf of another of her children, a son aged 16. That was provided on 7 and 8 August 2024. This son will be referred to in these reasons by the anonym ‘OLDS.’

   APPLICANTS’ MIGRATION BACKGROUND

5. Dr A is the ‘responsible parent’ in these two applications. She is not an Australian citizen but is a permanent resident of Australia. Dr A and her husband are citizens of the Republic of Singapore. Singapore does not permit its citizens to also hold citizenship of another country.

6. FQHD was born in Singapore in December 2010. He first arrived in Australia in March 2014. In December 2018 he was granted a Skilled Nominated (Subclass 190) permanent visa as a dependent.

7. On 12 December 2022, FQHD’s mother, Dr A, lodged an application for Australian citizenship by conferral on his behalf. At that time FQHD was aged 12.

8. In August 2023, FQHD was granted a Five Year Resident Return (Subclass 155) permanent visa.

9. On 7 November 2023, FQHD’s application for citizenship was refused by a delegate of the Respondent. On 8 November 2023, Dr A applied to the Tribunal, on FQHD’s behalf, for review of the delegate’s decision.

10. LHZR was born in Singapore in December 2012. He first arrived in Australia in March 2014. In December 2018 he was granted a Skilled Nominated (Subclass 190) permanent visa as a dependent.

11. On 13 December 2022, LHZR’s mother, Dr A, lodged an application for Australian citizenship by conferral on his behalf. At that time, LHZR was aged 9.

12. In August 2023, LHZR was granted a Five Year Resident Return (Subclass 155) permanent visa.

13. On 17 January 2024, LHZR’s application for citizenship was refused by a delegate of the Respondent. On 19 February 2024, Dr A applied to the Tribunal for review of the decision on LZHR’s behalf, and also for an extension of time to lodge an application for review, which was granted.

14. Dr A and her husband have two other children. Their eldest child is a daughter who was born in August 2005 and is now aged 19. She is an Australian permanent resident but did not apply for Australian citizenship, and does not otherwise feature in these reasons.

15. Their oldest son, OLDS, was born in March 2007 in Singapore. OLDS was granted a Skilled-Nominated (subclass 155) permanent visa in December 2008.

16. On 12 December 2022, OLDS’s mother, Dr A, lodged an application for Australian citizenship by conferral on his behalf. At that time, OLDS was aged 15.

17. In August 2023, OLDS was granted a Five Year Resident Return (Subclass 155) permanent visa.

18. On 7 November 2023, the then Minister for Immigration, Citizenship and Multicultural Affairs, the Hon. Andrew Giles, MP, wrote to Dr A to advise that OLDS’s application for citizenship had been approved from that date, and that he would be sent a certificate of citizenship by registered mail in due course. In his letter, the Minister advised that, as OLDS was now an Australian citizen, the visa he held had ceased.

    THE LAW

19. Section 21(1) of the Australian Citizenship Act 2007 (‘the Act’) provides that a person may apply to the Minister to become an Australian citizen. If a person makes an application under that section, s 24(1) provides that the Minister must approve or refuse the person becoming an Australian citizen.

20. A person may not be approved to become an Australian citizen unless the person is eligible under ss 21(2) to (8) of the Act.

21. Section 21(5) of the Act contains specific provisions for persons aged under 18. The Minister must be satisfied that such a person is a permanent resident both at the time the person made the application and at the time of the Minister’s decision on the application. The Respondent did not dispute that FQHD and LZHR both satisfied this requirement.

22. Section 24(2) of the Act provides that the Minister may refuse to approve a person becoming an Australian citizen despite the person being eligible under s 21(5).

23. In the cases of FQHD and LZHR, different delegates of the Minister were satisfied of their identity, satisfied that they were aged under 18, and were satisfied under s 21(5)(b) that each was a permanent resident at the time of the decision on the application.

24. Further, the delegates also considered prohibitions in the Act (set out in ss 24(3), (4), (4A), (6) and (7)) on approval, and found that these prohibitions did not apply to FQHD or LZHR.

25. The delegates separately each decided that, in spite of FQHD and LZHR meeting the requirements of s 21(5) of the Act, each of them was not in one of the following categories:

    (a)A child usually resident in Australia and living with a responsible parent who is an Australian citizen and who consents to the application; or

    (b)A child usually resident in Australia with a responsible parent who is a permanent resident and consents to the application, and that responsible parent would meet the residence requirement but is not applying for Australian citizenship because they would lose the citizenship of another country; or

    (c)A child living with a responsible parent who is not an Australian citizen and consents to the application and the child would otherwise suffer significant hardship or disadvantage if they were not to become an Australian citizen at this time; or

    (d)A child usually resident overseas and living with a responsible parent, who is an Australian citizen and who consents to the application, and the child (and their parent) has an intention to reside, or will maintain a close and continuing association with Australia should the application be approved;

    (e)A child who is an unaccompanied humanitarian minor who falls under the Minister’s guardianship and a delegated guardian has consented to the application; or

    (f)A child who is an unaccompanied humanitarian minor who does not fall under the Minister’s guardianship and their responsible carer has consented to the application.

26. The delegates each separately decided to use their discretion to refuse to approve FQHD and LZHR from becoming Australian citizens. The delegates stated in the respective decision records that they had considered the best interests of the child and have found that their decisions would not change the immigration status of FQHD and LZHR in Australia and would not deny them the protection and rights provided by Australian law whilst present in Australia, and that the decisions would not separate them from their family. Each delegate concluded that the refusal decision would not be against the best interests of FQHD and LZHR.

    SUBMISSIONS ON BEHALF OF THE APPLICANTS

27. Dr A provided a statement to the Tribunal dated 3 June 2024. She submitted that the decision to grant citizenship to OLDS but refuse it to FQHD and LZHR has (Exhibit A1):

    …caused much stress to me as it has created a family division which will cause different opportunities for the 3 children as it now means only [OLDS] has access to HECS which will mean better and wider education opportunities for him as I may not be able to afford to pay for advanced payment for further education for the other two children.

28. Dr A further submitted that she has been resident in Australia for four years as of 16 January 2024 and that if she were to apply again for FQHD and LZHR that would be an additional financial burden and waste time and effort. She noted the family was well settled in Australia and referred to the voluntary service of her husband as a soccer coach in the Australian community since 2020.

29. In her oral submissions to the Tribunal, Dr A noted that the Minister had ‘made a mistake’ in relation to her oldest son. In response to a query from the Tribunal, Dr A said she holds a doctorate of philosophy and is currently working as a casual relief teacher. She said she first landed in Australia in 2014 and ‘permanently migrated’ to Australia in January 2020.

30. Also in response to a question from Tribunal, noting that two of the applications were lodged on 12 December 2022 and another on 13 December 2022, Dr A confirmed that she lodged them late in the evening, through the Department of Home Affairs (‘Department’) on-line portal, so one probably was completed after midnight.

31. In her oral submissions, Ms Peake submitted that the delegates found that the applicants did not satisfy the Department’s policy and therefore it was appropriate to exercise the discretion to refuse them citizenship.

32. In respect of whether the refusal decisions would create hardship for FQHD and LHZR, Ms Peake submitted that if Dr A were now able to meet the general residence requirement, it was open to them to re-apply for Australian citizenship. She submitted that Citizenship Procedural Instruction (CPI) 12 noted that Australian citizenship is not a requirement for study in Australia and that both of the applicants are permanent residents.

33. Ms Peake acknowledged that it was unfortunate that policy was misapplied in the case of OLDS, but that does not mean that policy cannot be correctly applied in the cases of FQHD and LHZR. Ms Peake also said the Respondent accepted that the decisions had created difficulties for Dr A’s family, but that ‘severe detriment’ was not evident.

34. The Tribunal noted that the Republic of Singapore citizenship regime does not permit a Singaporean citizen from holding citizenship of another country, but asked Dr A whether she knew what the case is where a minor loses citizenship of Singapore because of acquisition of another nationality. Dr A said it was her understanding that a child in such a case must make an election before he or she turns 21 as to whether to renounce a foreign citizenship and retain their Singaporean citizenship.

35. In response to a question from the Tribunal, Dr A said her eldest child, who is an adult daughter, did not seek Australian citizenship at the same time as her three brothers because she intends to return to Singapore at some stage to reside.

    CONSIDERATION

36. The Respondent noted in written submissions that the Department has published an Australian Citizenship Policy Statement and also a series of ‘Citizenship Policy Instructions’ (which the Tribunal understood to mean the Revised Citizenship Procedural Instructions, or CPIs), which are broken up into chapters. The Respondent submitted that CPI 4, CPI 12 and CPI 13 are relevant in the cases of FQHD and LZHR.

37. CPI 4 concerns Australian citizenship by conferral – a person under 18. CPI 12 concerns assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship. CPI 13 concerns the best interests of the child assessments.

    The status of the policy

38. The Respondent noted that it is ‘well-accepted that the Tribunal will generally follow policy unless there are “cogent reasons” not to, citing Re Drake and Minister for Immigration andEthnic Affairs (No 2) (1979) 2 ALD 634 (‘Drake’).

39. The Respondent submitted that CPI 4 provides:

    To the extent that the Act allows for discretion, delegates must consider the Department’s approved policy and procedures where relevant and appropriate. This ensures that decision-making is consistent to the extent that it is appropriate and arbitrary outcomes are avoided.

    However, policy and procedures do not have the force of law. When exercising powers or making decisions under legislation, citizenship officers must give policy documents due weight, but must not apply policy inflexibly and may consider the merits of each individual case. In order to make a fair, reasonable and lawful decision, it may be appropriate to depart from the approved policy and procedures, depending on the facts of the particular case.

40. FQHD and LZHR fit the category in the policy consideration for being usually resident in Australia and living with a responsible parent (Dr A) who is a permanent resident and who consents to the application. CPI 4 provides:

    This policy only relates to situations where the responsible parent permanent resident is expected to meet the general residence requirement under section 21(2) of the Act and is not applying for Australian citizenship because they would lose the citizenship of another country…

41. Dr A would lose her Singaporean citizenship if she were conferred Australian citizenship. There is reference in one of her submissions to her applying for Australian citizenship in 2023 but being refused, apparently on the basis of not satisfying the general residence requirement of the Act at the time of her application, but any application she made is not before the Tribunal.

42. The Respondent submitted that the Tribunal should affirm the reviewable decisions because FQHD and LHZR do not satisfy the relevant Department policy requirements for approval for Australian citizenship for three reasons:

    (i)Dr A, as the responsible parent, does not meet the general residence requirements in s 22 of the Act and the applicants do not satisfy the second factor listed in paragraph 7 of CPI 4;

    (ii)There is no evidence that the applicants will suffer significant hardship or disadvantage if they are not conferred Australian citizenship at this time, and therefore FQHD and LHZR do not satisfy the third factor listed in paragraph 7 of CPI 4;

    (iii)Limited weight should be placed on a contention by the applicants that conferral of Australian citizenship is in the best interests of the child;

43. The Respondent further submitted that there are no cogent reasons to depart from the policy guidelines and that it remains open to FQHD and LZHR to apply for Australian citizenship by conferral in the future. The use of the phrase ‘cogent reasons’ reflects the wording used by the Tribunal’s first President, Sir Gerard Brennan, in Drake.  What he said in that matter has been successively endorsed by judicial opinion:

    In Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281, Cooke J (at 1298) held the effect of the relevant authorities to be:

    “…that a Minister charged with the duty of making individual administrative decisions in a fair and impartial manner may nevertheless have a general policy in regard to matters which are relevant to those decisions, provided that the existence of that general policy does not preclude him from fairly judging all the issues which are relevant to each individual case as it comes up for decision.”

    There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.

    Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute.

    …

    In my view, the Tribunal, being entitled to determine its own practice in respect of the part which Ministerial policy plays in the making of Tribunal decisions, should adopt the following practice:

    When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to Parliamentary scrutiny.

    The general practice of the Tribunal will not preclude the Tribunal from making appropriate observations on Ministerial policy, and thus contributing the benefit of its experience to the growth or modification of general policy; but the practice is intended to leave to the Minister the political responsibility for broad policy, to permit the Tribunal to function as an adjudicative tribunal rather than as a political policy-maker, and to facilitate the making of consistent decisions in the exercise of the same discretionary power.

1. In this case, the delegates of the Minister considering FQHD and LHZR’s applications referred to the CPIs in guiding their exercise of the discretion under the Act. The Full Court of the Federal Court of Australia made the status of the CPIs clear in Minister for Home Affairs v G and Another (2019) 266 FCR 569 (Murphy, Moshinsky and O’Callaghan JJ) in observing, at [18]:

   18. There is no power conferred by the Australian Citizenship Act to make the Instructions.  Despite appearing in a form that resembles a legislative instrument or that has a statutory source, the Instructions are made in an exercise of executive power.

   And at [58]-[62]:

   58. It is established that an executive policy relating to the exercise of a statutory discretion must be consistent with the relevant statute in the sense that: it must allow the decision-maker to take into account relevant considerations; it must not require the decision-make to take into account irrelevant considerations; and it must not serve a purpose foreign to the purpose for which the discretionary power was created...
   
   59. An executive policy will also be inconsistent with the relevant statute if it seeks to preclude consideration of relevant arguments running counter to the policy that might reasonably be advanced in particular cases: Drake (No 2) at 640. Thus, an executive policy relating to the exercise of a statutory discretion must leave the decision-maker ‘free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the [decision maker] will make in the circumstances of a given case’; Drake (No 2) at 641.

   60. However, as Brennan J sated in Drake (No 2) at 641, ‘[t]hat is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the [decision-maker] usually applies’....

   62. An executive policy that is inconsistent with the relevant statute in the sense described above is unlawful: see Drake (No 2) at 641. It is open to the Court to make a declaration to this effect, but whether it is appropriate to do so depends on an application of the general principles regarding the making of declarations...

   Was the policy applied reasonably?

2. In the cases of FQHD and LZHR, the Tribunal considers that the respective delegates did not apply the policy set out in the CPIs unreasonably. In the case of FQHD the delegate gave Dr A the opportunity to comment on the policies in relation to her second-oldest son, and she provided certain documents to the Department.

3. The delegate noted that FQHD is a permanent resident of Australia and has permission to stay in Australia indefinitely. The delegate considered that FQHD has ‘appropriate’ access education, health and social welfare services and protections under Australian law. The delegate was satisfied that a decision to refuse FQHD citizenship would not separate him from Dr A, and therefore was satisfied that the refusal decision was not against FQHD’s best interests.

4. In the case of LZHR, that delegate in August 2023 invited Dr A to comment on the policies in relation to her youngest son, but there is no reference in the decision record as to whether any material was provided.

5. This delegate also noted that LZHR is a permanent resident of Australia and has permission to stay in Australia indefinitely.

6. Because of the age of the two applicants, being under 18 and within the jurisdiction of Australia and its territories, each delegate was obliged to consider CPI 13, relating to the best interests of the child. This is a mandatory requirement of delegates and of the Minister himself because Australia has ratified the United Nations Convention on the Rights of the Child.

7. This delegate used identical words as the delegate in FQHD’s matter in deciding that LZHR has ‘appropriate’ access to education, health and social welfare services and protections under Australian law. This delegate was also satisfied that a decision to refuse LZHR citizenship would not separate him, in this case, from his family (not just Dr A), and was therefore satisfied that the refusal decision was not against LZHR’s best interests.

   Should the Tribunal apply the policy?

   General principles

8. The Tribunal agrees with the general principles espoused in Drake, which have met with subsequent judicial approval. Policy guidelines which are used by a Minister or a ministerial delegate to assist them to make a decision are relevant considerations, because the application of policy, where is it not inconsistent with the law, tends to reduce the scope, when a discretionary power is being exercised, for inconsistent application and therefore lessen any element of arbitrariness in how a decision is exercised in respect of similar cases.

9. In this matter, before the Tribunal was a table setting out Dr A’s movement records, into and out of Australia, from the period 12 December 2018 (i.e. the period four years before the applications for citizenship for FQHD, LZHR and OLDS were lodged). The table shows that for the period from 12 December 2018 to 13 December 2022, Dr A was out of Australia for an accumulated 529 days.

10. The Respondent submitted that Dr A did not satisfy the general residence requirement as she was not in Australia for the requisite period of time during the relevant four-year period, and therefore that FQHD and LZHR do not meet the ‘general residence requirement’ in paragraph 7 of CPI 4.

11. The Respondent conceded that Dr A satisfied the requirements of s 22(1)(b) and (c) of the Act, given that she was not an unlawful citizen at any time in the four year period before she applied on behalf of FQHD and LZHR (and OLDS) for citizenship, and she was not absent from Australia for more than 90 days in the 12 months preceding the date on which the applications were lodged, noting she was absent from Australia for 60 days in relation to FQHD’s application and 61 days in relation to LZHR’s application.

12. Relevantly, in response to a direct question from the Tribunal during the hearing, although the movement record before me related to Dr A’s travel as the responsible parent, she advised that her three sons travelled with her out of Australia on all of these occasions, because the family were in the process of relocating from Singapore to Australia.

13. The general residence requirement in s 22(1)(a) requires that a person must be present in Australia for the period of four years immediately before the day the person made the application. The general residence requirement flows from the general eligibility requirement in s 21(2) and is not directly applicable in the Act to persons under 18. However, the policy approach is that in such cases the general residence time periods should generally be applied in relevant cases (like that of FQHD and LHZR) where the child is ‘usually resident in Australia’ and living with a responsible parent who is a permanent resident. The Tribunal can see the logic of the policy generally linking to that statutory requirement for an adult applicant.

14. It is clear to the Tribunal that Dr A, had she applied for citizenship at the same time as she lodged applications for her three minor sons, would have been refused. That is because she did not at that time (based on the movement record which she did not dispute) satisfy the general residence requirement for allowable absences from Australia in the preceding four-year period, even though she did for the 12-month period immediately before 12 December 2022.

    Effect in these cases

15. The effect in these two cases is that, in the Tribunal’s view, the policy was not unreasonably applied in relation to the applications for FQHD and LHZR. There may be rational arguments about the use by each delegate of the word ‘appropriate’ in relation to access to education services. Dr A made the point that, once they finish their secondary education, the opportunities for FQHD and LHZR for tertiary studies would be less than that of their older brother, because they would not be eligible for HECS-HELP schemes.

16. The Tribunal agrees with Dr A on that point, and notes that CPI 12 comments on such a scenario by stating that ‘aspiring students who do not qualify for such assistance may be able to defer tertiary enrolment until after they have acquired citizenship’. That is so.  However, it is also the case that, given the age of FQHD and LHZR, they will not be embarking on tertiary study for several years yet, and would have ample opportunity to lodge a fresh application for citizenship before that time is reached.

17. But, putting that to one side, I consider that there is a fundamental flaw in the way the Respondent’s Department has managed the three applications for Dr A’s minor children. All of them were lodged with the Department by Dr A in a period of around two hours on the evening of 12 December 2022 or the early morning of 13 December 2022.

18. The first one lodged was that for Dr A’s oldest son, OLDS. It was considered by a delegate of the Minister on 7 November 2023 and approved, it appears, on the same day because that is the date when the Minister wrote to Dr A advising of his approval of the grant, and congratulating OLDS on becoming an Australian citizen.

19. The second application lodged was for FQHD. That was refused on the same date, 7 November 2023. The third application lodged was for LHZR, but that was not refused until more than three months later, on 17 January 2024.

20. It is not clear to the Tribunal why three different delegates considered these three applications. Presumably, there is some distribution system from the Department’s citizenship application portal which allocates applications to different officers of the Department who hold the Minister’s delegation. However, it would seem plainly logical to the Tribunal that, where the responsible parent lodging the applications is patently the same person, administrative efficiency would expect that the same delegate would consider each of the applications. Axiomatically, that approach would save time in terms of such requirements as verifying identity, the status of the parents, and other common features. It would also follow the dictum in Drake that applications from the same family would be considered without ‘individual predilection.’

21. That did not happen in this case. The Respondent submitted that the policy guidelines were ‘incorrectly applied’ in relation to OLDS, but quite properly did not suggest that this undermined the Minister’s action in conferring citizenship on him. That is correct because there is nothing that can be criticised in the Minister’s actions in regard to OLDS.

22. Brennan J in Drake did say, as the Respondent highlighted and as is reflected in the CPIs, that policy should generally be followed unless there is a ‘cogent reason’ to the contrary. However, the next sentence of His Honour’s reasons is equally important to remember:

    If it were shown that he application of ministerial policy would work an injustice in a particular case, a cogent reason would be shown, for consistency is not preferable to justice.

    (Emphasis added)

23. Importantly, in Drake, His Honour made this point:

    It is one thing for the Minister to apply his own policy in deciding cases; it is another thing for the Tribunal to apply it. In point of law, the Tribunal is as free as the Minister to apply or not to apply that policy. The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.

    In fulfilling its function, the Tribunal, being independent of the Minister, is free to adopt reasoning entirely different from the reasoning which led to the making of the decision under review…

24. I take the view that, in considering what is the correct and preferable decision in relation to FQHD and LHZR, Brennan J’s reasons must be read as a whole. Each reviewable decision might not, by itself, be ‘unjust,’ but in my view the two decisions in relation to these boys become unjust in the circumstances not of the delegates’ actions viewed in isolation, but in the circumstances that the Australian Government should have considered the three brothers equitably, it regrettably did not.

25. The Shorter Oxford Dictionary defines the word ‘cogent’ to mean: ‘powerful; forceful; having the power to compel consent; convincing.’ Although there is no doctrine of stari decisis in the Tribunal and the application of Drake must be considered in that context, it is nonetheless, because of subsequent judicial approbation, a powerful guide. I am satisfied, in the spirit of that decision, that there are compelling reasons in each application before me to come to a different conclusion.

26. I am satisfied in this case, because of the inconsistency in the application of citizenship policy in three cases, where there is no other evidence before the Tribunal that one of Dr A’s sons should have been, or should be, treated differently from the other two, that the preferable decision on review is that the decisions under review should be set aside. I can see no detriment to overall citizenship policy if these three minor children of the same parents and with the same migration history, are treated equally, especially in a factual situation now where it was not contested that Dr A as the responsible parent satisfies the general residence requirement, and to the extent that it is applicable to them, FQHD and LHZR now do, as well. Even more important, perhaps, than equal treatment, is equitable treatment in circumstances where there is no appreciable distinction. That is a principle that this Tribunal cannot ignore.

27. The Tribunal is being abolished because of a decision of the Parliament. But the purpose of the current Tribunal, from when it commenced operation in 1976 under President Brennan, was to allow an applicant to bring a decision for independent review which appears inequitable, or where, whilst the law might have been correctly applied, the exercise of a discretionary power may have either been unreasonable or result in an unintended effect. I am sure that underlying principle will be no different under the successor tribunal.  

28. I find that the delegates in the case of FQHD and LZHR did not exercise the discretionary power reposed in them unreasonably, but I also find that there has been an unintended (and inequitable) effect when those decisions are viewed together with the third decision in relation to their minor brother, OLDS. In line with the unimpeachable philosophy in Drake, an injustice would be worked in these two cases, were the decisions Dr A has brought for review to stand.

29. Therefore, the preferable decision in this matter is that the Respondent’s actions in refusing citizenship to FQHD and LZHR must be set aside. The matters will be returned to the Respondent with that direction and for the other requirements for the conferral of Australian citizenship to be completed.

    DECISION

30. Pursuant to s 43(1)(c) of the AAT Act, the decisions in applications 2023/8335 and 2024/1077 are each set aside.

31. In substitution therefor, the Tribunal decides:

    (a)The discretion in s 24(2) of the Act to refuse citizenship to FQHD should not be exercised.

    (b)The discretion in s 24(2) of the Act to refuse citizenship to LHZR should not be exercised.

    (c)The matters are each remitted to the Respondent with this direction, for completion of any outstanding requirements for the conferral of Australian citizenship

I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

..................................[sgn]......................................

Associate

Dated: 3 September 2024

Date(s) of hearing:	2 August 2024
Date final submissions received:	8 August 2024
Applicants:	Represented by their Mother
Advocate for the Respondent:	Ms Megan Peake
Solicitors for the Respondent:	Clayton Utz

ANNEXURE

Documents considered by the Tribunal

Tendered into evidence at hearing

Volume of ‘T’ documents for application 2023/8335             Exhibit R1

Volume of ‘T’ documents for application 2024/1077             Exhibit R2

Volume of supplementary documents for 2023/8335           Exhibit R3

Subclass 190 visa for responsible parent  Exhibit R5

Statement of responsible parent, 3 June 2024  Exhibit A1

Statement of responsible parent, 4 June 2024  Exhibit A2

Passport extract of responsible parent  Exhibit A3

Attachment to statement  Exhibit A4

Subclass 190 visa for FQHD  Exhibit A5

Provided after hearing

Case note file for OLDS, dated 7 November 2023

Letter from Minister to responsible parent re OLDS, dated 7 November 2023