G v Minister for Immigration and Border Protection
[2018] FCA 1229
•17 August 2018
FEDERAL COURT OF AUSTRALIA
G v Minister for Immigration and Border Protection [2018] FCA 1229
File number: VID 887 of 2017 Judge: MORTIMER J Date of judgment: 17 August 2018 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal to refuse application for Australian Citizenship – relief sought under Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B, Judiciary Act 1903 (Cth) – applicant a child under the age of 16 – Tribunal applied executive policy in refusing application – whether Tribunal erred in its construction and application of the policy in its findings concerning the “best interests of the child” – whether aspects of the policy unlawful – whether Tribunal erred by applying policy inflexibly – whether Tribunal made material findings of fact not open on the evidence – application allowed Legislation: Constitution, s 75(v)
Administrative Appeals Tribunal Act 1975 (Cth), s 44
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5(1)(e), 5(1)(f), 5(1)(j), 5(2)(f)
Acts Interpretation Act 1901 (Cth), s 15AB(1)(b)
Australian Citizenship Act 2007 (Cth), Preamble, ss 2A, 5, 19G, 20, 21, 22, 22A, 22B, 22C, 23, 24, 26(1)(a)
Australian Citizenship Act 1948 (Cth)
Federal Court of Australia Act 1976 (Cth), s 37AF
Immigration (Guardianship of Children) Act1946 (Cth)
Judiciary Act 1903 (Cth), s 39B
Migration Act 1958 (Cth), ss 48A, 48B, 91X, 499, 501(2)
Social Services Act 1947 (Cth), s 107
Veterans’ Entitlements Act 1986 (Cth)
Migration Regulations 1994 (Cth), Sch 2
Convention on the Rights of the Child. Opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990), Preamble, Art 3
Cases cited: AB v Minister for Immigration and Citizenship [2007] FCA 910; 96 ALD 53
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27
Black v Minister for Immigration and Citizenship [2007] FCA 1249
Braganza v Minister for Immigration [2003] FCAFC 170
Brennan v Comcare [1994] FCA 360; 50 FCR 555
Budilay v Minister for Immigration and Citizenship [2011] FCA 508; 194 FCR 133
Bushell v Repatriation Commission [1992] HCA 47; 175 CLR 408
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503
CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514
DEY16 v Minister for Immigration and Border Protection [2016] FCA 1261
Drake v Minister for Immigration and Ethnic Affairs [1979] FCAFC 39; 24 ALR 577
Elliot v Minister for Immigration and Multicultural Affairs [2007] FCAFC; 156 FCR 559
Friends of Leadbeater’s Possum Inc v VicForests [2018] FCA 178
Gerah Imports Pty Ltd v Minister for Industry, Technology and Commerce [1987] FCA 456; 17 FCR 1
Grass v Minister for Immigration and Border Protection [2015] FCAFC 44; 231 FCR 128
Green v Daniels [1977] HCA 18; 13 ALR 1
Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315
Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380
Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20; 182 FCR 115
Holden Limited v Chief Executive Officer of Customs [2005] FCAFC 27; 141 FCR 571
Jumbunna Coal Mine NL v Victorian Coal Miners’ Association [1908] HCA 95; 6 CLR 309
Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184
Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531
Kowalski v Repatriation Commission [2011] FCAFC 43
Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 87
McDonald v Director-General of Social Security [1984] FCA 59; 1 FCR 354
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24
Minister for Foreign Affairs v Lee [2014] FCA 927; 227 FCR 279
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164
Minister for Immigration and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20; 183 CLR 273
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323
Minister for Immigration, Local Government and Ethnic Affairs vGray [1994] FCA 225; 50 FCR 189
Momcilovic v The Queen [2011] HCA 34; 245 CLR 1
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Nevistic v Minister for Immigration and Ethnic Affairs [1981] FCA 41; 34 ALR 639
Nikac v Minister for Immigration, Local Government and Ethnic Affairs [1988] FCA 670; 20 FCR 65
Perez v Minister for Immigration & Multicultural Affairs [2002] FCA 450; 119 FCR 454
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476
Re Becker and Minister for Immigration and Ethnic Affairs [1977] AATA 12; 15 ALR 696
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; 2 ALD 634
Re Gungor and Minister for Immigration and Ethnic Affairs [1980] AATA 32; 3 ALD 225
Regis Aged Care Pty Ltd v Secretary, Department of Health [2018] FCA 177
Roach v Electoral Commissioner [2007] HCA 43; 233 CLR 162
Shams v Minister for Immigration and Citizenship [2011] FCA 1505; 199 FCR 423
Singh v Minister for Immigration and Border Protection [2018] FCAFC 52
Singh v Minister for Immigration and Citizenship [2011] FCA 685
Singh v Minister for Immigration and Citizenship [2012] FCAFC 12; 199 FCR 404
Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; 107 FCR 133
Warren v Repatriation Commission [2015] FCAFC 159; 238 FCR 124
Williams v Minister for Immigration and Border Protection [2014] FCA 674; 226 FCR 112
Wong v R [2001] HCA 64; 207 CLR 584
Sharpe J M, The Administrative Appeals Tribunal and Policy Review, (Law Book Company, 1986)
Date of hearing: 13 December 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 283 Counsel for the Applicant: Mr M Guo Solicitor for the Applicant: Asylum Seeker Resource Centre Counsel for the First Respondent: Mr R Knowles Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
VID 887 of 2017 BETWEEN: G
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MORTIMER J
DATE OF ORDER:
17 AUGUST 2018
THE COURT ORDERS THAT:
1.On or before 4 pm on 31 August 2018 the parties submit a joint proposed set of orders.
2.In the absence of any agreed orders, on or before 4 pm on 14 September 2018, the parties file proposed orders and submissions (not exceeding 5 pages).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MORTIMER J:
This is an application for judicial review of a decision by the Administrative Appeals Tribunal to refuse approval for the applicant’s application for Australian citizenship. The applicant invokes this Court’s jurisdiction under both the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth). That the Court has jurisdiction under the AD(JR) Act is not insignificant to the resolution of some of the grounds of review.
The applicant was eight years old at the time of the hearing of this proceeding. He brings this proceeding through his litigation representative, who is his mother.
For the reasons given below, there will be orders setting aside the decision of the Tribunal, and remitting the matter for determination according to law. Given the conclusions I have reached on ground 2, declaratory relief may also be appropriate, but the Court will hear the parties on that matter, and on the precise form of orders.
THE USE OF A PSEUDONYM
The applicant correctly submitted it was doubtful that s 91X of the Migration Act 1958 (Cth) applied to this proceeding, because the subject matter of this proceeding does not directly concern the applicant in his capacity as a person who applied for a protection visa.
As an alternative, at the hearing of this application the applicant sought orders pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth). I considered it was in the interests of the administration of justice that orders should be made prohibiting publication of the identity of the applicant. Orders giving effect to that conclusion were made, including an order that the name of the applicant be substituted by the pseudonym “G” in the originating application and in all previous orders. The orders made today, and these reasons, will accordingly refer to the applicant as “G”. The applicant is a young child, and has a disability. The reasons will set out some of his personal and family difficulties. An understanding of the public law issues in this case is not advanced by the publication of his identity, and it would constitute a substantial intrusion into the privacy of his family’s circumstances. Further, his parents’ migration status in Australia remains precarious and it is by no means impossible that, even if he were to succeed in this application and to succeed in his citizenship application, he would nevertheless be forced to return to Albania with his parents in the foreseeable future. He has been found by the Refugee Review Tribunal to be at risk of significant harm if he were to return to Albania. His parents claim to fear harm in Albania. Caution suggests his identity, and the identity of his parents which could be derived from his identification, should not be in the public domain.
BACKGROUND
The applicant was born in Australia. He has a younger brother who was born in Australia in 2011. The applicant has, on the uncontested medical evidence before the Tribunal, a severe language disability, borderline low IQ and Autism Spectrum Disorder. His parents are citizens of Albania. In 2004 and 2005 they applied for protection visas, in respect of Albania. They were unsuccessful and were therefore barred by s 48A of the Migration Act from applying again, without a favourable exercise of the Minister’s discretion under s 48B of the Migration Act.
The applicant, however, made his own application for a protection visa. It was refused at first instance. On review, in September 2012, the Refugee Review Tribunal found that the applicant faced a real chance of significant harm in Albania. The complementary protection basis for the grant of a protection visa was that the risk of harm arose as a consequence of a blood feud between the applicant’s family and another family. The Refugee Review Tribunal also made findings about the difficulty for the applicant in accessing health and related services in Albania. The applicant was granted a protection visa in January 2013, following the Refugee Review Tribunal findings.
Thus, although the applicant’s claim for protection was in large part based on the circumstances of his parents, only the applicant is the holder of a protection visa.
The applicant became a permanent resident, while his parents have remained with no certain migration status, and indeed his father remained in immigration detention at the time of the hearing. His father had been held in immigration detention for more than three years. Despite the applicant, his younger brother and his mother all being in Melbourne, the Department of Immigration saw fit to move the father to an immigration detention facility in Darwin in mid-2015. At some stage, he was then moved to Christmas Island, and then to a detention facility in Western Australia where he remained at the hearing of this proceeding. Even assuming these transfer decisions to be lawful, the likely harm and distress imposed on a family by this kind of decision-making should be obvious.
At the hearing I asked the Minister’s counsel to seek instructions on the explanation for the detention of the applicant’s father at locations such a long way from his two children and his wife. The Court was informed during the hearing those instructions were being sought. However, no explanation was forthcoming, either at the hearing or after it.
The applicant’s mother has a bridging visa which enables her to live in the community with the applicant and his brother, and to work, which she does.
The applicant’s father applied for a bridging visa, which was refused. Kenny J set aside the refusal on the basis of jurisdictional error: see DEY16 v Minister for Immigration and Border Protection [2016] FCA 1261. By the time of the Tribunal decision with which this proceeding is concerned, there had still been no decision as a result of the remitter by Kenny J.
The permanent residence status of the applicant meant he was eligible to apply for Australian citizenship, which he did on 10 February 2015. His application was refused by a delegate of the Minister on 16 July 2015, and on 18 August 2015 the applicant sought review of the delegate’s decision in the Tribunal. The Tribunal affirmed the delegate’s decision, and it is that review decision with which this proceeding is concerned.
The relevant parts of the legislative scheme
The Preamble to the Australian Citizenship Act 2007 (Cth) states:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia.
Section 2A contains what is described as a “simplified outline” of the Citizenship Act. Not all of the outline is relevant to the applicant’s circumstances. However, the relevant part of the “simplified outline” provides:
Becoming an Australian citizen
There are a range of ways you can become an Australian citizen.
…
The third is citizenship by conferral. Generally, you would need to be a permanent resident and willing to make a pledge of commitment to apply for citizenship by conferral. You may need to successfully complete a citizenship test. There are some less common circumstances in which you can apply for citizenship by conferral. Citizenship by conferral is covered by Subdivision B.
Division 2 of Pt 2 deals with citizenship by application. This division covers citizenship by descent from a parent who is an Australian citizen (subdiv A), or by adoption in accordance with the Hague Convention (subdiv AA).
Subdivision B is the subdivision applicable to the applicant’s circumstances, and deals with citizenship by conferral. The “simplified outline” in s 19G describes the range of circumstances in which a person might seek Australian citizenship by conferral:
19G Simplified outline
The following is a simplified outline of this Subdivision:
You may be eligible to become an Australian citizen under this Subdivision in 7 situations:
Ÿyou satisfy the general eligibility criteria and have successfully completed a citizenship test: see subsections 21(2) and (2A); or
Ÿyou have a permanent or enduring physical or mental incapacity: see subsection 21(3); or
Ÿyou are aged 60 or over or have a hearing, speech or sight impairment: see subsection 21(4); or
Ÿyou are aged under 18: see subsection 21(5); or
Ÿyou were born to a former Australian citizen: see subsection 21(6); or
Ÿyou were born in Papua: see subsection 21(7); or
Ÿyou are a stateless person: see subsection 21(8).
You must make an application to become an Australian citizen. The Minister must approve or refuse you becoming an Australian citizen.
You must be eligible to be an Australian citizen to be approved. You may be refused citizenship even if you are eligible.
The Minister may be required to refuse your application on grounds relating to:
Ÿnon-satisfaction of identity: see subsection 24(3); or
Ÿnational security: see subsections 24(4) to (4C); or
Ÿnon-presence in Australia: see subsection 24(5); or
Ÿoffences: see subsection 24(6); or
Ÿcessation of citizenship: see subsection 24(7).
You may need to make a pledge of commitment to become an Australian citizen.
Section 20 sets out the two requirements for becoming an Australian citizen:
20 Requirements for becoming a citizen
A person becomes an Australian citizen under this Subdivision if:
(a)the Minister decides under subsection 24(1) to approve the person becoming an Australian citizen; and
(b)if the person is required to make a pledge of commitment to become an Australian citizen—the person makes that pledge.
Note:Sections 21 to 25 deal with the Minister approving the person becoming an Australian citizen. Sections 26 and 27 deal with the making of a pledge of commitment.
The provisions relating to the making of the pledge of commitment are not relevant to the applicant, because he was under 16 at the time of making his application: see s 26(1)(a).
In relation to citizenship by conferral, the legislative scheme establishes two stages in any decision on an application for citizenship. The first stage is to measure an applicant against the eligibility criteria. The eligibility criteria are the gates through which all applicants must pass. If an applicant is eligible, the second stage created by the scheme is for a decision-maker to consider, as a matter of discretion, whether an applicant should be able to become an Australian citizen.
The general eligibility criteria for persons over 18 are set out in s 21(2), and include such matters as successful completion of a citizenship test. Other parts of s 21 deal with applicants who have a permanent or enduring mental or physical incapacity (s 21(3)), or who are over 60 years of age, or have hearing, sight or speech impairments (s 21(4)). Other parts of s 21 deal with children of former Australian citizens, people born in Papua and stateless people.
Section 21(5) deals with applications by persons under the age of 18 and is the provision relevant to the applicant. It provides:
Person aged under 18
(5)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)is aged under 18 at the time the person made the application; and
(b)is a permanent resident:
(i)at the time the person made the application; and
(ii)at the time of the Minister’s decision on the application.
The definition of “permanent resident” is set out in s 5 of the Citizenship Act, but need not be reproduced, as there was no dispute the applicant was within that definition.
Section 22 sets out a number of provisions about the “general residence requirement”, which forms part of the eligibility criteria for some categories of applicant. It is not presently relevant, except for the terms of s 22(6) which confer a discretion on the Minister to treat a certain period as a period of residence if the Minister is satisfied that:
…the person will suffer significant hardship or disadvantage if that period were not treated as one during which the person was present in Australia as a permanent resident.
Section 22(6) is not of itself relevant, but the concept of significant hardship is one which is picked up in parts of the Citizenship Instructions, which I deal with below.
Sections 22A and 22B then deal with other special circumstances in which the usual residence requirements may not need to be met. They, like s 22, are highly prescriptive. Section 22C empowers the Minister to specify, by legislative instrument, activities for the purposes of some of the provisions in s 22A and s 22B which will enable applicants not to have to meet the usual residence requirements. Section 23 provides for particular, truncated, residence requirements if an applicant (or a member of the applicant’s family unit) has completed defence service of the requisite kind.
Section 23A is the provision which empowers the Minister to approve a citizenship test, as a core part of the eligibility requirements for citizenship by conferral.
Section 24 is a key provision for the applicant’s arguments. It is the provision which confers a general power on the Minister to approve or refuse to approve a person becoming an Australian citizen. It is structured so as to require the Minister to exercise the power one way or the other. It also contains a prohibition on approval in certain circumstances, and confers a discretion to refuse citizenship even in circumstances where a person has met the eligibility criteria. Its text, relevantly, is as follows:
(1)If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Note: The Minister may cancel an approval: see section 25.
(1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
(2)The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).
Section 24 then sets out a number of other, specified circumstances in which the Minister is precluded from granting citizenship. They include: where the Minister is not satisfied of a person’s identity, where the person has an adverse security assessment, where other considerations of national security are specified to require refusal, where a person is in prison, or facing proceedings for any offence against Australian law, or if a person’s former citizenship status has ceased in the preceding 12 months. The presence of these specific provisions may be relevant to some of the construction arguments in this proceeding.
The Minister referred to a description by the Full Court in Grass v Minister for Immigration and Border Protection [2015] FCAFC 44; 231 FCR 128 at [55] about the nature of s 24(2):
Second, by reason of s 24(2), the Minister may refuse to approve a person who meets the eligibility criteria, including the good character requirement. This discretion is not expressly conditioned by any considerations. It is illustrative of the highly discretionary and staged nature of the process.
The Minister submitted this passage assisted his arguments in resisting the grounds of review. To the contrary, I consider it assists the applicant’s arguments (especially on grounds 2 and 3). As the Full Court noted, the legislative intention is that this second stage of the process be highly discretionary, unless the discretion is controlled by any of the specific sub-sections in s 24. However, outside those specific sub-sections, the legislative intention is for a broad discretion to be reposed in the decision-maker, albeit the decision-maker’s task is to decide whether to approve or refuse to approve the application.
The scheme then goes on to deal with matters such as previous cessation of citizenship and cancellation of approval which are not relevant to the current application.
Australian Citizenship Instructions
In reviewing the delegate’s refusal, the Tribunal applied government policy, as set out in a lengthy document entitled “Australian Citizenship Instructions” (as reissued on 1 July 2014).
There is no power conferred by the Citizenship Act to make the Citizenship Instructions. Despite their appearance in form as if they are a legislative instrument or have a statutory source, the Citizenship Instructions are made in an exercise of executive power.
Extracts only from the Citizenship Instructions appeared in the court book. Counsel for the Minister helpfully offered to supply a full copy, and what I set out below is taken from the full copy supplied to the Court by the Minister.
The Citizenship Instructions are 278 pages, divided into twenty chapters, with approximately 570 numbered and separate sections.
The introduction to the Citizenship Instructions commences with the following paragraph:
The role of the ACIs is to support the Australian Citizenship Act 2007. The instructions provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations. Decision makers should be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers under the Act.
As I note later in these reasons, these reminders reflect Australian law. One question is whether the Citizenship Instructions actually permit Australian law to operate in the way it is intended to, where there is an unconfined discretion, and also whether decision-makers faced with this policy (such as the Tribunal in the present case) can maintain the appropriate distance from the otherwise mandatory impression the text and structure of the Citizenship Instructions create. More particularly, a central question in this proceeding is whether the Tribunal understood and applied this qualification to the Citizenship Instructions, or instead simply followed the Citizenship Instructions as if they formed a framework constraining its discretionary decision-making function.
There is a reference in the introduction to the Citizenship Instructions being part of the “centralised departmental instructions system (CDIS)”. There was no evidence or explanation about what this “system” is. The “owners” of the Citizenship Instructions are said to be: the Citizenship Policy Section, the Citizenship Branch, the Migration and Citizenship Policy Division, and the “National Office”. The latter, going by a footer on the first page of the Citizenship Instructions, appears to be the Department of Immigration and Border Protection (as it was at the time the Citizenship Instructions were written)’s National Office.
Each chapter of the Citizenship Instructions deals with a different subject matter, the majority relating to the grant of citizenship. Insofar as the applicant’s grounds of review are concerned, the relevant chapter is Chapter 5, headed “Citizenship by conferral”. Before turning to that chapter, it is necessary to refer to the contents of Chapter 1 – the introductory chapter.
Chapter 1 provides some history to the original Citizenship Act – the Australian Citizenship Act 1948 (Cth) – noting that prior to 1948 those born in Australia or naturalised in Australia had the status of British subjects. The chapter then summarises the legislative scheme, which I have set out above, and reproduces substantial parts of the legislation, with cross references to what are described as “policy and procedure” parts of the Citizenship Instructions relating to particular topics.
The first part of Ch 5 also summarises the legislative scheme, in relation to citizenship by conferral, although there are aspects of the summary which also move into providing commentary on the legislative provisions, supplying interpretations of statutory phrases and setting out approaches, none of which are derived from the statute itself. For example, section 5.6.2 provides:
5.6.2 Sections 21(2)(d), (e) and (f)
Under s21(2A) the requirements that the applicant ‘understands the nature of the application’, ‘possesses a basic knowledge of the English language’ and ‘has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship’ can only be satisfied by the successful completion of a test. See Chapter 16 - Citizenship test, for further details.
The requirement for applicants for citizenship by conferral to ‘possess a basic knowledge of the English language’ is met if a person has sufficient knowledge of English to be able to exist independently in the wider Australian community.
The requirement to have an ‘adequate knowledge of Australia and of the responsibilities and privileges of Australia citizenship’ is linked to the concepts and information people need to understand in order to make the pledge of commitment.
The Australian citizenship test is designed to assess whether a person has an adequate knowledge of Australia and the responsibilities and privileges of citizenship, and a basic knowledge of the English language.
None of what appears in the last three paragraphs is derived from the statute.
As the Citizenship Instructions then move to deal with each of the various categories of applicants (persons with a disability, persons over 60 and so on), there are an increasing number of passages not derived from the statute but which are in the nature of advice, or (as the document name suggests) instructions on how to deal with applicants in particular categories.
The parts of Ch 5 relevant to the applicant’s grounds of review commence at section 5.12.1. After extracting the terms of s 21(5) of the Citizenship Act, the Citizenship Instructions state:
The discretion in s 24(2) to refuse to approve an applicant becoming an Australian citizen despite being eligible under s 21(5) would usually be exercised where the applicant does not meet the policy guidelines. In making a decision whether to refuse or approve an application, the primary considerations that need to be taken into account are the legislative requirements, the best interests of the child and the policy guidelines set out below.
(emphasis added)
There are several matters to note about this passage. First, it purports to tell decision-makers how to “usually” exercise a discretion in circumstances where the statute does not condition the discretion by any requirement about how it is to be “usually” exercised. Second, a policy that instructs a decision-maker about how to “usually” exercise a statutory discretion, is a policy which imposes a starting premise on a decision-maker that is not contemplated or authorised by the statute. Third, the three matters described as “primary considerations” by the Citizenship Instructions are attended with some difficulty. The language of 5.12.1 is imperative. To say that certain matters “need to be taken into account” is to require or direct the decision-maker to look at these matters. That is a requirement not imposed by the statute.
A “legislative requirement”, identified as the first “primary consideration”, is no such thing: it is the source, and the bounds of, a decision-maker’s authority.
The identification by the Citizenship Instructions of the best interests of the child as a second “primary consideration” does not have its source in the statute, but would appear to be an executive recognition of the principle that, unless a clear contrary intention is shown, statutory powers are taken to be intended by Parliament to be exercised, so far as their language permits, in conformity and not in conflict with Australia’s international obligations: see Minister for Immigration and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20; 183 CLR 273 at 287-288 (Mason CJ and Deane J) (and the cases there referred to); Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 at [18] (French CJ) (and the cases referred to at footnote 170 by the Chief Justice); CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 [8] (French CJ) and the authorities referred to there by the Chief Justice. Art 3(1) of the United Nations Convention on the Rights of the Child 1989 (being the international convention in issue in Teoh’s case) provides that in all actions concerning children, including by “administrative authorities”, the “best interests of the child shall be a primary consideration”.
The third “primary consideration” which decision-makers are directed they “need” to take into account are the policy guidelines themselves. Thus, and despite what appears on the first page of the Citizenship Instructions, decision-makers are in reality directed that they are required to make their decision in the framework set by the policy guidelines.
On the best interests of the child consideration, section 5.12.2 then directs decision-makers to an entire section of the Citizenship Instructions devoted to this topic: Ch 18. This Chapter commences by describing its purpose:
This chapter provides guidance on when and how to consider the best interests of a child.
(emphasis added)
This is one of the many examples of the contradictory language used throughout the Citizenship Instructions. Decision-makers are told, on the one hand, that there are three “primary considerations”, one of which is the Citizenship Instructions. The Citizenship Instructions convey the impression the Citizenship Instructions and the legislation have equal status, and equal prominence. Decision-makers are told they “need” to take these matters into account. It is said that Ch 18 tells them “when” and “how” to consider the best interests of the child. On any ordinary reading, this language and structure conveys the impression that the Citizenship Instructions are the only source for the “when” and the “how”. The use of the word “guidance” is lost in this language and structure, if “guidance” is intended to convey something less imperative. Of course “guidance” can be suggestive, advisory or imperative, depending on context. Here, in my opinion, it is clearly the latter.
Although tempting to work through each of the assertions contained in Ch 18, and measure them for their consistency with Australian law, that exercise is not necessary in order to decide the applicant’s grounds of review. Chapter 18 extracts Art 3 of the Convention on the Rights of the Child, and then instructs decision-makers about the circumstances in which Art 3 applies. Relevantly, the Citizenship Instructions state that officers “must consider a child’s best interests when exercising a discretionary power under… s 24(2)”, which was the power exercised in relation to the applicant. In section 18.3 the Citizenship Instructions then set out eight factors about the best interests of the child that it is said: “are most likely to be relevant to citizenship decisions”. Where these factors are drawn from remains unstated. Section 18.3.1 then contains the following statement about weighing the considerations of what is in the best interests of the child:
Article 3 requires that the best interests of the child be a primary consideration in all actions concerning children. Article 3 does not require that the best interests of the child be the only primary consideration. The best interests of the child must be weighed with or against any other primary considerations in the specific circumstances. Other primary considerations may include (but are not limited to):
Ÿthe objectives of the relevant provision/s in the Act
Ÿcommunity protection and
Ÿcommunity expectations.
This means that although it may be assessed that a particular decision would be in the best interests of a child, it does not automatically follow that it is the decision that should be made. For example, it may be in the best interests of a child for a delegate to decide not to revoke an associated person’s Australian citizenship under s34 but, depending on the particular facts and after taking into account the other primary considerations, the decision maker may conclude that revocation of the person’s citizenship is the decision that should be made.
The concepts of “community protection” and “community expectations” are not explained in this section of the Citizenship Instructions, although the expression “community expectation” appears elsewhere in the document, particularly at section 10.3.3 in relation to the “Australian values statement”, a document which adult applicants for citizenship are required to sign. This “values statement” is said to be an expression of such expectations.
Section 5.12.5 is also central to the applicant’s grounds of review. It is introduced by the following general direction:
A child aged under 16 can make an individual application in their own right (by applying on a form that contains no other application) or on the same form and at the same time as a responsible parent. This is set out in s46(2A).
In the case of an applicant who does not meet the policy guidelines below, decision makers must consider the full circumstances of the case, including the best interests of the child, to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances.
Guidance on whether it may be reasonable to consider a particular set of circumstances as unusual can be obtained through the Citizenship Helpdesk. Under policy, if an applicant is under 16 years of age a responsible parent must sign the application form.
(emphasis added in underline)
The applicant emphasises the parts I have underlined. He submits, and I accept, that the purpose of these three paragraphs is to make it clear that as a first step the decision-maker is required to assess and decide whether a child applicant for citizenship by conferral meets the prescriptions set out in the paragraphs that follow, which are ordered by category of circumstances that may apply to children.
Although the Citizenship Instructions describe these following sections as “guidelines” it is apparent from their content and structure, and from the passage I have extracted at [54], especially read with the passage I have extracted at [52], that decision-makers are, by these Citizenship Instructions, being directed to apply and follow the sequence and content of the Citizenship Instructions. As I have noted, to describe them as “guidelines” says little about the effect of the structure, content and language of the Citizenship Instructions.
The prescriptions which follow divide child applicants into several categories: children under 16 applying in their own right (the applicant’s category); children applying at the same time as a responsible parent; children under the guardianship of the Minister pursuant to the Immigration (Guardianship of Children) Act1946 (Cth) and children who are unaccompanied minors but not covered by the Immigration (Guardianship of Children) Act.
The prescriptions for the applicant’s category are:
Children under 16 applying individually in their own right would usually not be approved under s24 unless they are permanent residents at the time of application and decision and also meet the following policy guidelines:
Ÿare under 16 when applying and living with a responsible parent who is an Australian citizen and who consents to the application or
Ÿare usually resident in Australia with a permanent resident responsible parent who consents to the application, and that responsible parent would meet the residence requirement but has decided not to apply for Australian citizenship because they would lose the citizenship of another country or
Ÿare under 16 when applying, 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 - see section 5.17 Ministerial discretion - significant hardship or disadvantage (s22(6)) or
Ÿare an unaccompanied humanitarian minor who falls under the Minister’s guardianship and a delegated guardian has consented to the application, see section 5.12.7 IGOC minors (previously wards of the Minister) or
Ÿare an unaccompanied humanitarian minor who does not fall under the Minister’s guardianship and their responsible carer has consented to the application, see section 5.12.8 Non-IGOC minors (previously unaccompanied humanitarian minor (UHM) non-wards).
Other requirements which must be satisfied relating to identity, national security, offences and former citizens are set out in section 5.27.1 Minister’s decision (s24) - summary.
(emphasis added in bold)
I have highlighted in bold the parts applicable to the applicant. As I have noted, the premise of the policy is that a child’s application “would usually not be approved” unless the child meets the stipulations set out in this part of the Citizenship Instructions. The way these passages are framed directs the decision-maker to adopt either:
(1)a default position that an applicant must satisfy a number of non-statutory criteria for the s 24(2) discretion to be exercised in her or his favour; or
(2)a default position of refusal, and then to assess whether that default position is altered because a child applicant meets a number of non-statutory criteria.
Whichever way one approaches the effect of these passages, the unconfined discretion in s 24(2) is, in reality, closely and specifically regulated by section 5.12.5 in relation to child applicants under the age of 16.
The third dot point concerning “significant hardship or disadvantage” provides a link to another part of the Citizenship Instructions (section 5.17) where there are detailed provisions concerning the content of this concept, for the purposes of the policy.
What is immediately apparent from section 5.17 is that the subject matter of this part of the Citizenship Instructions is a different statutory discretion altogether. It is not the discretion in s 24(2) of the Citizenship Act, but rather an altogether different discretion in s 22(6) of the Citizenship Act. Section 22(6) relates to circumstances in which the general residence requirements for a citizenship application may be varied, because the Minister is satisfied a person “will suffer significant hardship or disadvantage if that period [of residence but not as a permanent resident] were not treated as one during which the person was present in Australia as a permanent resident”. Thus, the principal purpose of section 5.17 is to provide a policy framework for decision-makers to assess compliance with the threshold residence requirements in the Citizenship Act.
Section 5.17.2 is headed “What is significant hardship or disadvantage”. The section commences with references to the Macquarie dictionary meanings of each of those three words, plainly with some selection having been made by the drafter about which meaning to choose because the extracts do not purport to be quotations from the Macquarie Dictionary. For example, one of the techniques employed is to introduce definitions, as if the Citizenship Instructions were a statute. When these are compared with the definitions of each word given in the fifth edition of the Macquarie dictionary, it is apparent that the method used to establish the “dictionary meaning” of each term has been to take the definition listed first for each word and to omit any further or alternative definitions. For example, the Citizenship Instructions define the term “hardship” using the first definition listed for that word, being “a condition that bears hard upon one; severe toil, trial, oppression, or need”, omitting the alternative definition provided for the noun: “2. An instance of this; something hard to bear”.
Thus, decision-makers dealing with a child such as the applicant, who has met the residence requirement, are directed to employ the criteria in section 5.17 to determine the meaning and content of a concept (“significant hardship or disadvantage”) which is not found in the statute conferring the discretion the decision-maker is called on to exercise. Further they are directed to adopt what purport to be exclusive definitions of a (relevantly) non-statutory concept.
The section then goes on to set out the circumstances applicants would “normally be required to demonstrate”. It can be inferred that by the use of the word “normally”, just as with the use of the terms “not usually” and “normally” in other places in the Citizenship Instructions, the purpose of employing such terms in the Citizenship Instructions is to direct decision-makers to adopt a starting point or premise that is consistent with the criteria set out in the Citizenship Instructions, and then to require them to be positively persuaded to adopt a different approach if an applicant does not meet that starting point or premise. The Citizenship Instructions state that an applicant would “normally be required to demonstrate”:
Ÿinability to gain employment on the grounds that the employment is restricted to Australian citizens, and that comparable or alternative employment is not reasonably available
Ÿdifficulty of international travel because the person cannot obtain a passport from their country of nationality/citizenship, or are unable to use a passport issued by that country for safety or similar reasons or cannot obtain an alternative travel document
Ÿacademic (for example, research, academic scholarship) or other (sporting etc) potential is being limited or restricted, because the opportunities to reach that potential is available only to an Australian citizen, to the extent that it causes significant hardship.
Of these, it is apparent that a child, and more especially a young child, would be unlikely to be able to “demonstrate” any of these kinds of effects. The first is plainly irrelevant. Nevertheless the Citizenship Instructions require the decision-maker to measure the application against that criterion. No rationale is given for the choice of these three categories of “hardship”. Indeed, no rationale is offered as to why it is appropriate to impose an additional threshold of the existence of hardship or disadvantage at all.
The Citizenship Instructions go on, in section 5.17.2, to raise the bar even further about this superimposed requirement of significant hardship or disadvantage. They state:
Applicants would need to demonstrate that not having citizenship is the only or major cause for the significant hardship or disadvantage. Decision makers will need to assess each application on its merits with particular reference to all the circumstances of the case to assess whether the person’s lack of Australian citizenship is the only or major cause of the significant hardship or disadvantage.
The Citizenship Instructions then assert that “evidence is required” that a person’s lack of Australian citizenship is the cause of the significant hardship or disadvantage. I return to this matter below, however it is worth pointing out that this passage is a good example of how the Citizenship Instructions, by their structure, content and language, effectively reverse the operation of the statutory scheme established by the Parliament. The scheme established by the Parliament relevantly has four components: a duty to consider whether to approve or refuse to approve a citizenship application; the imposition of certain threshold requirements before an application can be approved; a series of express prohibitions or constraints requiring the refusal of approval and a general discretion to refuse approval.
Nothing in the statutory scheme indicates an intention by Parliament that the required approach to the duty in s 24(1) of the Citizenship Act (whether to approve or refuse approval) or to the discretion in 24(2) (whether to refuse approval) is for a decision-maker to ask what hardship or disadvantage a lack of citizenship will cause, as if the correct approach – and operating premise – is that a person must establish some kind of positive, tangible need to have citizenship. Rather, an application for citizenship is an opportunity for a person to become a full and formal member of the Australian community, with all the reciprocal rights and obligations that entails. It will be recalled that the Preamble to the Citizenship Act itself states:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia.
The statute places no onus on an applicant for citizenship to prove why citizenship is necessary to avoid hardship or disadvantage, in comparison with continuing only with the status of a permanent resident. Yet, this is the effect of the Citizenship Instructions for child applicants in the applicant’s situation.
The Tribunal’s decision
The applicant’s eligibility, pursuant to s 21(5) of the Citizenship Act was not in dispute before the Tribunal. The merits review centred on the discretionary power of refusal contained in s 24(2).
The Tribunal’s function was, of course, to make the correct or preferable decision on the material before it: see Bushell v Repatriation Commission [1992] HCA 47; 175 CLR 408 at 424-425 (Brennan J).
In Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [10] French CJ described the review function of the then Refugee Review Tribunal and Migration Review Tribunal. This description applies equally to the function of the AAT:
The word “review” “has no settled pre-determined meaning; it takes its meaning from the context in which it appears.” As appears from the nature of the powers conferred on these tribunals, the review each must undertake involves a fresh consideration of the application which led to the decision under review. The review must be based on the evidence and arguments placed before the tribunal and any other relevant information which the tribunal itself obtains. Each tribunal must identify for itself the issues that arise in the application before it. It is not confined to the issues considered by the delegate.
(footnotes omitted)
See also: Kowalski v Repatriation Commission [2011] FCAFC 43 at [33]-[34], where the Full Court took a similar approach, applying Bushell and the High Court’s findings in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429 to the jurisdiction conferred on the AAT under the Veterans’ Entitlements Act 1986 (Cth). See also: Warren v Repatriation Commission [2015] FCAFC 159; 238 FCR 124 at [13]-[14] (Jessup J, Collier and Mortimer JJ agreeing).
At [4], the Tribunal framed the issue that needed to be determined in the following way:
The issue before the Tribunal is whether the delegate of the Minister should have refused to approve GZQZ becoming as Australian citizen pursuant to the discretion in section 24(2) of the Act.
Framing the question in this way poses a rather narrower description of the Tribunal’s function as a full merits reviewer than that described in the authorities to which I have referred. The appropriate question for the Tribunal was what was, on the material before it, the correct or (if there is more than one correct way) preferable way in which to perform its duty under s 24(1) and to exercise the discretion in s 24(2) of the Citizenship Act, in relation to the applicant’s citizenship application. The starting point was not whether the Tribunal considered there was anything wrong with the delegate’s refusal, or what the delegate “should” have done. From the outset, the Tribunal’s task began to miscarry.
The miscarriage continues in the very next paragraph. At [5], the Tribunal stated:
In determining this, the Tribunal must consider:
ŸIs it in the best interests of GZQZ that he be granted Australian citizenship?
ŸWould GZQZ otherwise suffer significant hardship and disadvantage if his application for Australian citizenship is refused?; and
ŸDo the full circumstances of GZQZ’s case (including his best interests) nevertheless warrant approval of his application for Australian citizenship because of the unusual nature of those circumstances?
The three questions the Tribunal poses for itself are entirely taken from the Citizenship Instructions. The Tribunal describes these as matters it “must consider”. Its reliance on the Citizenship Instructions constrains its exercise of discretionary power from the outset. More than that, the Tribunal adverts to nothing else. It does not advert to the qualifications at the start of the Citizenship Instructions and which I have extracted above at [37]. More importantly, it does not start with the statute, which is the source of its power. It does not recognise its duty in s 24(1), nor does it recognise that the discretion to refuse in s 24(2) is not confined by, or conditioned on, any of the three matters it has set out as matters it “must” consider.
Indeed, not only does the Tribunal not refer to s 24(1) at [5] of its reasons, it does not even set it out as part of the relevant legislative framework for its decision at [6]-[7] of its reasons. Instead, it sets out only the discretion to refuse approval in s 24(2). Thus, again, it was framing its task as whether to refuse the application, rather than whether to approve or refuse to approve the application. It started with a negative premise, which was an incorrect approach. Its statutory task was contained in s 24(1) not s 24(2).
I have described above the structure and content of the Citizenship Instructions. At [9] of its reasons, the Tribunal describes how it saw the role of section 5.12.1 of those Citizenship Instructions, being one of the central aspects of the policy set out in the Citizenship Instructions applicable to the applicant’s citizenship application:
Section 5.12.1 of the ACIs provides that the discretion in s 24(2) of the Act to refuse to approve an applicant becoming an Australian citizen despite being eligible under s 21(5) of the Act would usually be exercised where GZQZ does not meet the policy guidelines.
This passage reinforces the negative premise which is the Tribunal’s starting point, although it superimposes a second negative premise. Not only is the Tribunal commencing with considering whether to refuse to approve the application; it is now adding to that a starting proposition that refusal would “usually” occur unless the criteria in the policy are met. There is nothing in the Tribunal’s language which discloses any consciousness that its discretionary power need not only be approached through this prism.
The Tribunal then states at [10]:
In making a decision whether to refuse or approve an application, the primary considerations that need to be taken into account are the legislative requirements, the best interests of the child (section 5.12.2) and the policy guidelines.
This is a direct quotation from 5.12.1 of the Citizenship Instructions, which I have extracted at [5] above. It suffers from the difficulties I have expressed above. It is unsurprising, since the Tribunal is adhering strictly to the Citizenship Instructions, that the Tribunal also sees these three matters as having equal prominence.
Having adopted that as a starting point, the Tribunal then applies, step by step, the contents of the Citizenship Instructions.
The Tribunal refers to s 5.12.5 of the Citizenship Instructions which I have extracted and discussed above. The Tribunal first sets out (at [11]) the specific criteria in the Citizenship Instructions which, unless met, would usually result in an application not being approved, and then moves (at [12]) to the “best interests” criterion, as it is expressed at 15.12.5 of the Citizenship Instructions, which the Tribunal sets out verbatim. Again, however, the structure of the reasoning of the Tribunal is:
(1)Refusal of approval unless the specific criteria are met; and
(2)Consideration of best interests to see if refusal should not be the outcome.
All premised, as I have noted, on refusal being the starting point, and the “usual” outcome.
From [13], the Tribunal then goes through the specific criteria in 5.12.5, which I have discussed above. It is clear from the language used that the Tribunal is approaching its task as if these criteria must be met, and G’s application can be approved only if he meets the policy prescriptions. The extreme level to which the Tribunal takes this can be seen from the opening words of [14]:
An applicant would need to demonstrate that not having citizenship is the only or major cause for the significant hardship or disadvantage.
The Tribunal places an onus on the applicant not present in the statute. The onus relates to matters not present in the statute. The requirement for a causal nexus between not obtaining citizenship and some identified disadvantage, and a singular causal nexus at that, is not a requirement that can be derived from the scope, subject matter and purpose of the statutory provisions. It is extraneous to them, and antithetical, because it involves a reversal of the approach required by the Citizenship Act.
Another example of how far the Tribunal strays away from the statute is [15] of its reasons:
The ACIs provide that decision-makers should be aware of the difference between personal needs and personal wants. Personal needs relate to situations which would give rise to significant hardship or disadvantage if a person could not meet that need, whereas personal wants are aspirations and generally do not constitute hardship (for example the right to vote, election to Parliament or representing Australia internationally).
The right to vote is a central feature of citizenship. It is not a “want”: it is a civil and political right that inheres in all citizens, subject to any exceptions provided by law. Indeed, it has been characterised as a constitutional right: see Roach v Electoral Commissioner [2007] HCA 43; 233 CLR 162 at [7], (Gleeson CJ). In Roach at [12] Gleeson CJ describes the present understanding of the concept of citizenship:
Since what is involved is not an additional form of punishment, and since deprivation of the franchise takes away a right associated with citizenship, that is, with full membership of the community, the rationale for the exclusion must be that serious offending represents such a form of civic irresponsibility that it is appropriate for Parliament to mark such behaviour as anti-social and to direct that physical separation from the community will be accompanied by symbolic separation in the form of loss of a fundamental political right. The concept of citizenship has itself evolved in Australian law. The preamble to the Australian Citizenship Act 2007 (Cth) declares that Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations. The reference to the reciprocity of rights and obligations is important in the context of membership of the community. Serious offending may warrant temporary suspension of one of the rights of membership, that is, the right to vote. Emphasis upon civic responsibilities as the corollary of political rights and freedoms, and upon society’s legitimate interest in promoting recognition of responsibilities as well as acknowledgment of rights, has been influential in contemporary legal explanation of exclusions from the franchise as consistent with the idea of universal adult suffrage.
(footnotes omitted)
Although the applicant is a young child, if he were a citizen then as he grew – and like any other Australian citizen child – his sense of himself as a full member of the Australian community would shape, ultimately, how he chose to exercise his right to vote. The Tribunal’s dismissal of the right to vote as something which can be discarded in determining whether or not to approve an application for citizenship reveals how fundamentally the Tribunal misunderstood its task, and was distracted by the content of the Citizenship Instructions.
The Tribunal has, in my opinion, been encouraged to stray into this entirely unnecessary and extraneous territory because of the structure and content of the Citizenship Instructions, together with its strict adherence to them. In [15], the Tribunal embarks on an exegesis of distinctions not even made in the Citizenship Instructions, but flowing from them because the Citizenship Instructions have encouraged it, as a decision-maker, to focus on what disadvantage might be caused if citizenship is not granted. The Citizenship Act has no such focus.
The Tribunal then commences to set out the evidence before it about the applicant. However, it is worth noting that the heading to this section of the Tribunal’s reasons is:
Should the discretion to refuse to approve the application be exercised?
Again, this is but one component of the Tribunal’s task. The core task for the Tribunal is that in s 24(1).
The evidence dealt with G’s difficulties at school, the fact the family is separated because his father is in immigration detention; G’s autism and the treatment and assistance he receives in relation to his condition, and what the situation would be if the applicant were to return to Albania, in terms of access to medical and health care facilities. The Tribunal summarised some aspects of G’s mother’s evidence in the following way (at [22]-[23]):
22.The mother reiterated that she wants GZQZ to be granted Australian citizenship because she wants to ensure his safety and for him to feel secure, particularly as he is a sensitive child who does not cope well with change, and the specialist medical treatment for his autism would not be available in Albania. She said that she would feel less stressed if the citizenship application is approved and his stability is maintained.
23.At the hearing the mother acknowledged that there is little practical difference between citizenship and permanent residence with regard to GZQZ’s daily activities, but she maintained that citizenship would give him a sense of belonging in the country of his birth. She also conceded that if citizenship is granted to GZQZ she would use his status to try to remain in Australia. She said that if she is forced to leave Australia, she would take GZQZ with her, but if the father is forced to leave she would seek to remain in Australia with GZQZ.
I infer from the fact that the Tribunal used the term “conceded” that the issue of whether G’s mother would “use” her son’s citizenship to try and stay in Australia was either put to her by the Tribunal, or by the solicitor for the first respondent. It is unclear why this was a relevant matter at all: clearly if a child is a citizen and a parent is not, the parent may wish to rely on the fact of the child’s citizenship in their own application for a particular migration status. Either the law will allow that or it will not. There is nothing inappropriate, or to be criticised, about such a matter, although plainly the Tribunal considered this fact cast the mother (and perhaps the applicant’s application) in a negative light.
The Tribunal then went through evidence given by a social worker, the principal of G’s school and G’s paediatrician, all of which was supportive of G’s application.
The Tribunal then refers to a series of events concerning the applicant’s father’s application for a bridging visa, which are not relevant to the grounds of review. Suffice to say those events led the Tribunal to adjourn the review for some time, but after about eleven months the applicant’s solicitor made it clear the applicant did not ask the Tribunal to postpone its decision any longer, despite the father’s circumstances not being resolved.
After a statement with which I deal at [120] below, the next part of the Tribunal’s reasoning under the heading “Consideration” begins with a discussion under the following heading:
Is it in the best interests of GZQZ that he be granted Australian citizenship?
As I have already noted, this may, on one view, be a question arising from the terms of the introductory statement in 5.12.1 of the Citizenship Instructions, read with the section on the best interests of the child. It is not a question posed by the Citizenship Act.
Nevertheless, having posed this question for itself, the Tribunal does not answer the question it has posed. Instead it deals with a different question, and one that it reframes in the negative – whether “if GZQZ is not granted Australian citizenship at this time, his best interests, as informed by the Convention [on the Rights of the Child], will be compromised”. Inherent in that question is the imposition of another burden on the applicant to prove, and for the Tribunal to be satisfied, that his interests will be compromised.
The way the Tribunal poses the question is also clearly influenced by the content and approach of the Citizenship Instructions, which is to commence from a position that a child’s citizenship application should not be granted unless certain criteria are met. That is, the Citizenship Instructions also start from the negative position of a refusal.
Conversely, even if it were a legitimate approach to ask the question posed by the Tribunal as part of its consideration (and it can be accepted, consistently with the authorities to which I have referred at [48] above that it is a permissible enquiry), answering the positively put question may have led it to a different approach.
Instead, the Tribunal’s reasons disclose the effect of the burden it imposed on the applicant, and its starting point of refusal. In its reasons concerning G’s “best interests” it did not consider any of the evidence before it, and to which it had earlier referred, about why citizenship would make a positive difference to G. Aside from the mother’s evidence (which the Tribunal also did not consider in this part of its reasons), that evidence was, on the face of the Tribunal’s reasons, not subject to any criticism and was from three independent sources: a social worker, a school principal and a paediatrician. Instead, the Tribunal looked only for evidence of compromise of the three matters it sets out in [35]:
35.Although the best interests of the child is not defined in the Convention on the Right of the Child, the Preamble recognises that every child is entitled to protection from violence and abuse; families should be respected; and the child should be able to preserve his or her identity.
36.There is no evidence before the Tribunal that if GZQZ is not granted Australian citizenship at this time, his best interests, as informed by the Convention, will be compromised. GZQZ is protected by his mother from violence and abuse; the family is able to remain together at present (apart from the detention of the father); and his identity is preserved. If the mother is forced to leave Australia, it is highly likely that GZQZ would accompany her and continue to live with her and be protected by her. There is no evidence to persuade the Tribunal that the lack of an Albanian passport would prevent GZQZ from travelling to Albania, as he is an Albanian citizen pursuant to the laws of that country because his parents are Albanian citizens, and he would probably be able to obtain acceptable documents for travel purposes. GZQZ’s permanent visa would enable him to visit Australia whenever practical.
37.For these reasons, the Tribunal finds that GZQZ has not demonstrated that it is in his best interests that his application for Australian citizenship be granted by conferral at this time.
A further difficulty with the Tribunal’s reasoning in [36] is that its finding that the applicant would be “protected” in Albania is directly contrary to the finding of the Refugee Review Tribunal. The Tribunal does not engage with the Refugee Review Tribunal’s findings or reasoning, nor seek to distinguish them on the material before the Tribunal: rather, it simply ignores the finding and the outcome of the Refugee Review Tribunal’s decision. Again the Tribunal appears to have been so closely focussed on its own interpretation of the requirements of the Citizenship Instructions as to in substance ignore material it should have been addressing.
The Tribunal then asked itself the following question (by a heading):
Would GZQZ otherwise suffer significant hardship and disadvantage if his application for Australian citizenship is refused?
This question goes back to the criterion which is set out in 5.12.5, where the Citizenship Instructions direct a decision-maker that an application would usually be refused unless this criterion is met.
The Tribunal outlines evidence given by the applicant’s mother, his school principal, his paediatrician and a social worker who had been working with the family for about five years, all of whom emphasised the stability, security and certainty that having citizenship would bring to the applicant, and all of whom noted how unsettled, distressed, uncertain and unstable he currently was.
The Tribunal made no findings that this evidence was not credible or reliable, and made no criticism of these witnesses. However it approached their evidence only through the confines imposed by the Citizenship Instructions.
The Tribunal made the following findings:
40.The Tribunal accepts that GZQZ is a young boy who has lived all his life in Australia and has a close connection with Australia. He has special needs that are being addressed by medical practitioners, and he is doing well at school and at home with the support of teachers and community organisations. He has been granted a protection visa on the basis of the risk of serious harm if he returns to Albania. His parents have been unable to register his birth in Albania and have been unsuccessful in obtaining an Albanian passport for him.
41.As GZQZ’s parents have been refused protection visas, their immigration status remains uncertain, raising questions about whether GZQZ would remain in Australia if his parents (particularly the mother) are forced to leave. The uncertainty about the application for citizenship has affected the mother and has caused her some emotional distress, which in turn affects GZQZ.
42.However the Tribunal also accepts that any hardship or disadvantage caused to GZQZ arises not only because of the refusal of citizenship, but is due mainly to the father’s detention and the uncertain visa status of both parents. There is no evidence before the Tribunal that the grant of citizenship would protect GZQZ from the instability of the parents’ situation or from the possibility that he may be required to return to Albania with them.
43.Similarly, as GZQZ is already doing well at school and his medical and special needs are being addressed, there is no evidence before the Tribunal to suggest that this would cease without the grant of Australian citizenship. As a permanent resident, GZQZ has permission to remain in Australia and to continue to receive the support he currently enjoys by way of access to education, health and social welfare services. The grant of citizenship would make no difference to his right to reside in Australia.
Although it refers to the fact that G’s parents have been unable to register his birth in Albania and have been unsuccessful in obtaining an Albanian passport for him, the Tribunal does not actually appear to take into account the fact that, at least at the time of the hearing before it, G had no status in Albania, but more importantly, could not reasonably be expected to return to Albania as the Refugee Review Tribunal had found he faced a real chance of suffering significant harm there.
Further, the finding at [43] again continues the theme which pervades the Citizenship Instructions, but not the Citizenship Act: namely, that a child applicant for citizenship in G’s position must identify some matter which is out of the ordinary, compelling and necessary in order for citizenship to be granted. This is but one of the many passages in the Tribunal’s reasons where the Citizenship Instructions have plainly, and impermissibly, confined and skewed the Tribunal’s consideration of G’s application.
Thirdly, and finally, the Tribunal asked itself the following question by way of a heading:
Do the full circumstances of GZQZ’s case (including his best interests) nevertheless warrant approval of his application for Australian citizenship because of the unusual nature of those circumstances?
This question is the “fall back” position set out in the Citizenship Instructions, where a child applicant has, relevantly, failed to satisfy the decision-maker that she or he will suffer hardship or damage if the citizenship application is refused.
It was under this heading that the Tribunal referred to the basis on which the applicant was granted a protection visa. It described that basis as follows (at [46]):
…on the basis of the claims of his parents arising from the alleged blood feud and also GZQZ’s developmental delay and associated medical issues.
I note this finding is, in fact, erroneous. While findings were made by the Refugee Review Tribunal concerning G’s medical and developmental issues and the limited support available in Albania, this was found not to be a basis for complementary protection: the sole basis was the blood feud.
The Tribunal then concluded (in the same paragraph):
However the events giving rise to the alleged blood feud occurred about 15 years ago, and there is no persuasive evidence that GZQZ would be in any danger if he is required to return to Albania with his parents. There is no evidence that medical facilities in Albania would be inadequate or otherwise unable to deal with GZQZ’s special needs. Accordingly the Tribunal is not satisfied that, when viewed in its overall circumstances, GZQZ’s position is out of the ordinary or unusual, particularly in view of his status as a permanent resident of Australia.
This finding is contrary to the Refugee Review Tribunal’s findings at [170] and [195], made only five years before the Tribunal’s decision, which it might be thought provided more than “evidence” for the Tribunal, and might have been considered a finding that this Tribunal was obliged to give considerable weight to, and apply unless there was evidence before it to the contrary. The use by the Tribunal of words such as “alleged” to describe a factual situation (blood feud) that the Refugee Review Tribunal had accepted in its fact-finding is inappropriate. The Tribunal did not seek to, and was not authorised to, re-consider the grounds for the applicant’s protection visa application. It was required to, and should have, accepted the findings made by the Refugee Review Tribunal. For it to do otherwise undermines the integrity of the administrative decision-making process. The word “alleged” again discloses its predisposition to refuse G’s citizenship application, encouraged, I infer, by the structure and content of the Citizenship Instructions.
Even if, contrary to my present view, there was a lawful basis on which the Tribunal might have decided to depart from the Refugee Review Tribunal’s findings, it would need to have done so by confronting the evidence in the proceedings before the Refugee Review Tribunal, and also the mother’s evidence before the Tribunal itself on the review of the citizenship decision (see [19] of the Tribunal’s reasons). It did none of this. Again, the Tribunal appears to have been blinded by the approach required by the Citizenship Instructions, which did not deal with complexities such as those arising in G’s circumstances.
Nowhere in its reasons does the Tribunal disclose any consciousness of the fact that it has an unfettered discretion to decide whether to refuse or not to refuse the citizenship application.
It is true that in its reasons at [33] the Tribunal stated:
The Tribunal is obliged to apply the policy contained in the ACIs unless there are cogent reasons not to do so (Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634). In this case the Tribunal considers that there are no cogent reasons not to do so, and the policy in the ACIs should be applied.
Although a supervisory Court should not rely too heavily on the placement of matters within the reasons of the decision-maker, in this case the placement is telling. The Tribunal had set out the issue it had to determine at [4] of its reasons, and then the structure of its consideration at [5]. It had then elaborated on that structure in the way I have outlined above. All of these passages were a direct and entire application of the Citizenship Instructions, with the Tribunal failing to note that its task was that in s 24(1) not s 24(2). For the Tribunal to insert a passage such as that at [33] at the start of its “consideration”, in the middle of its reasons, should be seen as nothing more than formulaic, and not representative of its actual reasoning process. Further, for reasons I develop below, an incantation of a paraphrase of a portion of Drake (No 2) in the context of applying a policy such as the Citizenship Instructions is not capable of saving this decision from the relief I consider should be granted.
In oral argument, counsel for the Minister accepted that what the Tribunal set out at [33] was not the language in Drake (No 2), but resisted the proposition that it did not reflect the law in Drake (No 2). The Minister submitted the Tribunal’s phrasing was merely “inelegant”. I do not accept that submission. In my opinion, the Tribunal expressed itself in this way because it considered it was obliged, in a practical sense, not only to take the Citizenship Instructions into account, but strictly to adhere to their structure, their content and the outcomes suggested by that content. All of its reasons – in content and structure – support this conclusion. Its statement at [33] does not reflect the legal principles in Drake (No 2) and it is put at a level of compulsion which is consistent with the Tribunal, in reality, applying the policy inflexibly. I return to this matter when I consider the grounds of review.
Finally, if any further confirmation of the incorrect approach by the Tribunal was required, the last paragraph of its reasons (which comes well after its reference to Drake (No 2)), confirms the view I have expressed. The Tribunal ends its reasons by stating:
For these reasons the Tribunal finds that GZQZ has not demonstrated that the full circumstances of his case are so unusual that approval of his Australian citizenship application is warranted at this time.
(emphasis in original)
This, as a conclusion, is not drawn in any way from the Citizenship Act, and indeed is based on matters I find extraneous to the Citizenship Act. It discloses no consciousness of the Tribunal’s task under s 24(1), nor its task to make its own decision on the material before it, not the decision proposed by the Citizenship Instructions.
Grounds of review
The applicant identifies four grounds of review. Ground 1 alleges the Tribunal misunderstood the content of the concept of the best interests of the child. It is based on the Citizenship Instructions not being correctly understood and applied.
Ground 2 contends that one aspect of the policy contained in the Citizenship Instructions is unlawful. The applicant contends “the policy requirement that an applicant must demonstrate ‘significant hardship or disadvantage’ as a precondition to the non-exercise of the discretion to refuse the citizenship application” is unlawful.
Ground 3 contends that the Tribunal inflexibly applied the policy in the Citizenship Instructions, and confined itself to deciding whether the criteria in the policy were met. In particular, he contends the Tribunal did so by requiring G to demonstrate that the “full circumstances” of his case were “unusual” or “so unusual” as to warrant departure from the policy set out in the Citizenship Instructions.
Ground 4 contends that the Tribunal made a material finding of fact that was not open on the evidence, at [46] of its reasons where it found:
…there is no persuasive evidence that [G] would be in any danger if he is required to return to Albania with his parents.
The applicant contends that finding was not open on the evidence before the Tribunal which included the findings of the Refugee Review Tribunal in relation to the applicant’s protection visa. Later in that same passage at [46], the Tribunal referred to “no evidence” that medical facilities in Albania would be inadequate or otherwise unable to deal with G’s special needs. At the hearing, counsel for the applicant sought leave to expand the particulars to ground 4 as they appeared in the amended originating application, to take in the Refugee Review Tribunal’s reference to adequacy of medical facilities. Counsel did so, it was submitted, to make it clear that this ground sought to rely on all of the Refugee Review Tribunal’s findings, seen with the evidence before the Tribunal from G’s mother and his paediatrician, about the risks he would face in Albania, both of a health and non-health kind. Counsel for the applicant relied on the fact (not contested by the Minister) that the Refugee Review Tribunal had found G would face a real chance of significant harm on return because of his autism and the paucity of medical facilities in Albania, but found this fell within one of the exceptions to the concept of serious harm (within the meaning of s 91R of the Migration Act as it existed at the time) and so did not find G satisfied the criteria for a protection visa on this basis. Counsel contended on this application nevertheless that this evidence was uncontested, and the subject of a finding by the Refugee Review Tribunal. In that way, he submitted the Tribunal’s approach involved either jurisdictional error, or was an error of law, or was contrary to law, within s 5(1)(f) and 5(1)(j) of the AD(JR) Act.
In summary, I am not persuaded that the authorities on which the Minister relied require me to reach a conclusion different to that I have expressed. The circumstances in those cases were different, with different arguments. A misunderstanding or misapplication of the second category of executive policy, to which French and Drummond JJ referred in Gray at 208, is capable of constituting a reviewable error, and certainly a sufficient kind of error for the purposes of s 5(1)(f) of the AD(JR) Act. Gray itself was an s 44 appeal from the AAT: see Gray at 200. Such an appeal is “on” a question of law, which is again sufficiently equivalent to s 5(1)(f) of the AD(JR) Act: see the examples given by the Full Court in Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [123]-[125].
Further, as I have noted above, at [36]-[37] of its reasons it is apparent the Tribunal imposed an onus on G to demonstrate that it was in his best interests for his citizenship application to be approved, where he had no such onus, and indeed the Citizenship Instructions imposed no such onus. The Tribunal’s language, read fairly and in context, insists that an applicant do more than bring forward persuasive evidence or material to support an application. G had done this: there was no shortage of evidence, including objectively independent evidence, about what, as a child, was contended to be in his best interests. The Tribunal’s reference to “has not demonstrated” cannot sensibly be seen as referring to a failure to produce material. Rather, it refers to the Tribunal’s impression that G had a burden of proof to discharge, which he did not: see McDonald v Director-General of Social Security [1984] FCA 59; 1 FCR 354 at 357-8 (Woodward J); 365-6 (Northrop J); 368-9 (Jenkinson J); Singh v Minister for Immigration and Border Protection [2018] FCAFC 52 at [144]. I do not identify this matter as a separate error, as it was not relied on by the applicant as a ground of review. Nevertheless, the way the Tribunal approached its assessment of the material before it was to require G (at [37]) to “demonstrate” that it is “in his best interests that his application for Australian citizenship be granted by conferral at this time”. The Citizenship Instructions (at section 5.12.5) only required the Tribunal to “consider the full circumstances of the case, including the best interests of the child”, and no more than that. This is further evidence of the Tribunal’s misunderstanding of the policy it took into account.
It was an error of law for the Tribunal to misunderstand the executive policy it was obliged to take into account, by failing to address all of the matters set out in the Citizenship Instructions in Chapter 18 (“Best interests of the child”), read with sections 5.12.2 and 5.12.5, in its assessment of G’s citizenship application.
I do not need to determine whether this error was of a jurisdictional kind. There may be force in the view that it is not. However, the applicant can succeed on this ground under the AD(JR) Act and that is sufficient.
Resolution of ground 2: unlawful policy
The component of the Citizenship Instructions which is challenged as being unlawful is that contained in 5.12.5. To recall the context of this part of the Citizenship Instructions, two additional, negative, hurdles are placed in the way of a child applicant by the policy:
(1)The first is the instruction that child applicants under the age of 16 and living with a responsible parent who is not an Australian citizen “would usually not be approved under s 24” unless (in addition to the statutory requirements) they meet a series of policy guidelines, including that they can demonstrate “significant hardship or disadvantage” if they are not granted citizenship.
(2)The second is that if they do not meet these policy guidelines, they must demonstrate their application nevertheless “warrants approval” because of the “unusual nature” of their circumstances.
In plain terms, the policy instructs a decision-maker to ask:
(1)Can an applicant avoid refusal because she or he satisfies one of the policy’s stated criteria?
(2)If not, is there something unusual about the applicant’s circumstances that favours approval of the citizenship application?
The applicant’s unlawfulness ground is confined to the imposition by the Citizenship Instructions of the requirement for a child applicant to demonstrate “significant hardship or disadvantage” if she or he were not to be granted citizenship. The applicant submits there are three reasons this aspect of the policy is invalid:
(1)The notion that “significant hardship or disadvantage” has any significance as a general prerequisite to the grant of citizenship is not supported by any provision in the Citizenship Act;
(2)The cross reference in the Citizenship Instructions to the concept of “significant hardship or disadvantage” in 22(6) introduces through the “back door” a statutory condition for citizenship that the Citizenship Act imposes only in relation to certain, presently irrelevant, residence situations.
(3)The purpose of the power in s 24 does not support the imposition of “significant hardship or disadvantage” as a further requirement for the grant of citizenship.
I accept that the Citizenship Instructions, in both their structure and their content, do impose a matter in the nature of a precondition on the exercise of the power under s 24(1) (or, for that matter, the subsidiary discretion in s 24(2)) that is not present in the statute, and is inconsistent with it.
The applicant’s submissions are supported by reference to the extrinsic material. I have previously expressed the caution needed when dealing with extrinsic material: see Regis Aged Care Pty Ltd v Secretary, Department of Health [2018] FCA 177 at [48], [90]; Friends of Leadbeater’s Possum Inc v VicForests [2018] FCA 178 at [53]-[57]. And see Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 (French CJ, Hayne, Crennan, Bell and Gageler JJ) at [39], quoting the Court’s judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27. Here, both parties sought to rely on the explanatory memorandum to the 2005 Citizenship Bill. I accept that it may be useful to examine the terms of the explanatory memorandum to ascertain the “mischief” and purpose of leaving the power as a wide discretionary one: see for example the comments of Mason P in Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380 at 399. Whether or not one should go beyond that to use extrinsic material to determine meaning (notwithstanding the terms of s 15AB(1)(b) of the Acts Interpretation Act 1901 (Cth)) is another question. Certainly, a court is not obliged to do so: see Brennan v Comcare [1994] FCA 360; 50 FCR 555 at 573 (Gummow J).
The relevant extract from the explanatory memorandum on which the applicant relied was as follows (with the applicant’s emphasis):
The purpose of this subsection is to retain the existing discretion (under Section 13 of the old Act) of the Minister not to approve an application in certain cases.
This discretion has been in existence since the inception of the Act in 1948.
It has been a uniform feature of naturalisation legislation (i.e. citizenship by conferral) throughout the Commonwealth for over a century to give the Executive a wide discretion regarding the approval or refusal of citizenship applications. This is because Australian citizenship by application is a privilege and not a right. The new Act should continue to promote this understanding.
Persons who satisfy the eligibility criteria are generally approved to become citizens. However, it is conceivable that a person could meet the criteria but nevertheless it may not be in the public interest for that person to become an Australian citizen. An example may include a person whom the Australian community would consider as a person who incites hatred or religious intolerance. That person may not necessarily have been convicted of specific offences and may not necessarily fall strictly into the category of refusal on the basis of the good character requirement, but could be within this discretion.
The applicant submits, and I accept, that the mischief sought to be addressed by retaining a wide discretion to refuse, was to enable the refusal of applications where it was seen to be in the public interest to do so, bearing in mind this explanatory memorandum also describes citizenship as a “privilege” not a right. No doubt there will be circumstances where a particular application may present considerations which are appropriate for a residual discretion to refuse, and that is clearly the purpose of s 24(2). To make that observation is not to import into s 24 a public interest criterion, by reason of the references to that concept in the explanatory memorandum.
Rather, the reference in the explanatory memorandum to the public interest, read with the text and context of s 24 in the wider scheme of citizenship by conferral in the Citizenship Act, is consistent with a characterisation of the power in s 24(2) as a broad, residual discretion, intended by Parliament to inform the principal statutory task in s 24(1).
There is no suggestion in the explanatory memorandum, nor in the text, context and purpose of the legislative scheme of the Citizenship Act as I have explained it above, to support the proposition that it was Parliament’s intention that the “default position” for the exercise of the power in s 24(1), read with the discretion in s 24(2), should be refusal unless a series of additional requirements are met, including a pre-requisite to show “significant hardship or disadvantage” if citizenship is not conferred. Certainly, the Parliament has expressly considered and adopted the concept of “significant hardship or disadvantage” in a particular context, when dealing with residence eligibility conditions for citizenship applicants. In that context, the concept is used beneficially, as a way for applicants who do not satisfy the statutory criteria to nevertheless seek to meet the residence requirements. It can be taken to have consciously decided not to employ that concept elsewhere. It is beyond the bounds of a lawful executive policy for this statutory concept to be employed for a quite different purpose, particularly a non-beneficial one.
Albeit in a different context, the dangers which are associated with repetitive and detailed guidelines or guidelines which encourage giving particular weight to particular factors, and the centrality guidelines might attach to matters that are given no significance (or no mention) in a statutory scheme, were the subject of observations by the members of the High Court in Wong v R [2001] HCA 64; 207 CLR 584 at [31] (Gleeson CJ); [44], [65], [71], [74] (Gaudron, Gummow and Hayne JJ); [130], [132] (Kirby J); [165] (Callinan J).
In Wong, Gleeson CJ noted that guidelines with specificity and prescription can have the “effect” of constraining a wide discretion (there, the sentencing discretion), and also of elevating factors that form no part of the statutory approach. The same can be said about many aspects of the Citizenship Instructions, as I have noted earlier in these reasons. Specifically, and for the purposes of ground 2 of the application, the observations in Wong are apposite to the introduction of the requirement for “significant hardship or disadvantage” by section 5.12.5.
At [85], the plurality in Wong quoted with approval a passage from Winneke P in the Victorian Court of Appeal:
Further, as Winneke P rightly pointed out in R v Ngui (149):
“Experience in other areas of the law has shown that judicially expressed guidelines can have a tendency, with the passage of time, to fetter judicial discretion by assuming the status of rules of universal application which they were never intended to have. It would ... be unfortunate if such a trend were to emerge in the sentencing process where the exercise of the judge’s discretion, within established principles, to fix a just sentence according to the individual circumstances of the case before him or her is fundamental to our system of criminal justice.”
(citations omitted)
Whilst that is a statement made in relation to guidelines articulated by courts, it is not difficult to see how statements from the executive to administrative decision-makers are capable of having the same effect.
I consider the imposition of a prerequisite that an applicant show “significant hardship or disadvantage” crosses the boundaries discussed by Brennan J in Drake (No 2) and Stephen J in Green. For the same reasons given by Stephen J in Green, this aspect of the Citizenship Instructions is not saved by the use of the adjective “usually” in the phrase “would usually not be approved”. If anything, this adjective contributes to the rule-like quality of this aspect of the guidelines. It purports to instruct decision-makers about what they would “usually” do: that is, they would “usually” refuse to approve unless an applicant had discharged a burden (impermissibly imposed in my opinion) to prove a particular kind of “significant hardship or disadvantage”.
As I have noted above, I do not consider there is anything in Plaintiff M64 which precludes this result. Nor do I consider that the observations of the Full Court in Singh at [43]-[46], nor Buchanan J in Budilay, nor Jacobson J in Shams v Minister for Immigration and Citizenship [2011] FCA 1505; 199 FCR 423, preclude this conclusion. An argument of this kind was not developed in any of those cases.
In Shams, at [64]-[66], Jacobson J said this about the construction of the discretion in s 24 in the context of the Citizenship Act as a whole:
The pledge incorporates the concept of a communal relationship with Australia. That relationship is bound up with a pledge of loyalty and a statement of shared beliefs and respect for Australia’s rights and liberties. The scope and purpose of the scheme is wide. There is nothing in it which suggests that the discretion is confined by a mere consideration of the conditions for eligibility.
Indeed, it extends to a consideration of all the factors which bear upon the willingness and ability of a person to become an Australian citizen. One of those factors is the question of whether the person has been a resident of Australia for a specified period.
This approach to construction is reinforced by a consideration of the 1948 Act. It is part of the context in which the Act is to be construed.
Reference to such matters is, with respect, entirely legitimate and appropriate. An understanding of what the legislative scheme means by the concept of citizenship is important to any construction of the powers conferred, but also to the lawfulness of any executive policy. The kinds of matters to which Jacobson J refers are consistent with what is in the explanatory memorandum about the need for a residual discretion. None of these kinds of matters have any rational connection with the imposition, by executive fiat, of a precondition in the nature of proof of “significant hardship and disadvantage” flowing from a refusal to grant citizenship. That matter is extraneous to the scheme of the Citizenship Act.
I find that part of s 5.12.5 of the Citizenship Instructions, emphasised in bold below, is unlawful:
Children under 16 applying individually in their own right would usually not be approved under s24 unless they are permanent residents at the time of application and decision and also meet the following policy guidelines:
…
Ÿare under 16 when applying, 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 - see section 5.17 Ministerial discretion - significant hardship or disadvantage (s22(6)) or
…
(emphasis added)
The Tribunal’s exercise of power miscarried by applying this aspect of the policy as a central and material basis for its exercise of power, and an error of this kind is plainly jurisdictional. It may be appropriate for there to be a declaration to that effect. The parties will have an opportunity to make submissions on this matter.
Resolution of ground 3: fettering/inflexible application of policy
The applicant relies on the AD(JR) Act, s 5(1)(e), read with s 5(2)(f) – namely, that there was an improper exercise of a discretionary power under an enactment in accordance with a rule or policy without regard to the merits of the particular case.
This ground is, as I understand it, an alternative to ground 2, and premised on a conclusion that the “significant hardship or disadvantage” aspect of the Citizenship Instructions is a lawful policy. I consider the ground on that basis, although I have concluded that aspect of the Citizenship Instructions is unlawful.
I have set out above why what the Tribunal said about Drake (No 2) is incomplete and inaccurate. The position is more nuanced than the passage in the Tribunal’s reasons suggests.
The passage in Drake (No 2) to which the Tribunal referred cannot become a mantra for decision-makers to avoid performing their task with active intellectual consideration of the material before them in a fulsome way, and not only in accordance with a structure imposed on the decision-maker by an executive policy. A Tribunal must give active intellectual consideration to what is the correct or preferable decision on the basis of all the material before it, in all of the circumstances before it. One of those circumstances is the existence, and content, of an executive policy.
As Gageler J noted in Plaintiff M64, ensuring consistency through the use of executive policy may assume particular importance in high volume decision-making, or decision-making where there is competition for a finite number of rights or interests that can be created. However, even in those circumstances, as Gageler J also recognised (at [73]) policy must not encourage rigidity, and as the High Court noted in a different context in Wong, guidelines should not be outcome focussed, but remain method focussed.
Buchanan J also recognised in Budilay at [11] that the Citizenship Instructions “are not intended to dictate how the discretion under s 24 of the [Citizenship] Act must be exercised, whether generally or in any particular case”. The applicant expressly put a submission to this effect to the Tribunal in his written contentions prior to the hearing. The applicant submitted:
The Tribunal is therefore not bound by the ACls and, while entitled to take them into account, it must be careful not to adopt an uncritical application of the policy statements in the ACls. The Tribunal should not consider its review function to be unduly fettered or constrained by the policies contained in the ACls.
As I have sought to explain, the applicant’s submission reflects the law. I do not consider the Tribunal substantively adopted such an approach. I consider it did adopt, in a wholesale fashion and uncritically, the method for arriving at an outcome it saw the Citizenship Instructions as setting out. Indeed it adopted as its starting position, and only position, that G’s application should be refused unless the Tribunal was persuaded his circumstances fell within the four corners of the Citizenship Instructions. It structured its entire reasons around the structure of the Citizenship Instructions. It considered, in a narrow and limited way, only what the Citizenship Instructions set out. Its approach to G’s best interests is a good example, but not the only one. Consciously or unconsciously, its reasons disclose it imposed a burden of proof on G. Since the Refugee Review Tribunal’s decision did not fit easily within the structure of the Citizenship Instructions, and including the requirement in the Citizenship Instructions to show that his case was “unusual” or “so unusual” as to justify departing from the policy, the Tribunal mostly ignored it, although the findings and outcome of the Refugee Review Tribunal decision bore materially on many of the issues the Tribunal considered.
In contrast to Nevistic, in my opinion, the Tribunal in this case has abdicated its function entirely to the dictates of a policy which seeks to replace the Citizenship Act with a prescriptive regime that on its face tends against the approval of citizenship applications, that not being a bias disclosed or supported by the text, context or purpose of the Citizenship Act.
I accept that a judgment whether an administrative decision-maker has so closely adhered to an executive policy that she or he has fettered the exercise of a broad statutory discretion involves elements of assessment and evaluation on which reasonable judicial minds might differ. The differences between the Full Court and the primary judge in Braganza are but one example. That said, even if some evaluation is involved, in the end there is only one correct answer to the question on judicial review whether a power has been lawfully exercised or not: see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [18] (Kiefel CJ), [59]-[60] (Gageler J), [76] (Nettle and Gordon JJ).
In the present application, I find that the Tribunal’s reasons involve an inflexible application of the policy because of:
·The language used by the Tribunal at [4] and [5] to frame its view of its task on review;
·The failure to identify its task as being the exercise of the power in 24(1) read with the discretion in s 24(2), but that discretion not controlling the whole of the task under s 24(1);
·The way the Tribunal structured its reasons;
·The absence of consideration of factors outside the Citizenship Instructions;
·The adoption of the premise, underlying its entire reasoning, that it should “usually not approve” a citizenship application from a child under 16 unless the conditions set out in the Citizenship Instructions were met;
·The emphasis placed in the reasons on demonstrating compliance with certain aspects of the Citizenship Instructions (such as “significant hardship or disadvantage” and “full circumstances” that are “so unusual” as to warrant approval);
·The presence of a great deal of apparently cogent, credible and un-contradicted material that could have been considered in a variety of ways by the Tribunal but was not because the Tribunal simply stuck to the method set out in the Citizenship Instructions;
·The failure of the Tribunal to confront the effect of the Refugee Review Tribunal decision; and
·The erroneous interpretation the Tribunal gave to the principle in Drake (No 2) and the use to which it put that authority.
Resolution of ground 4: finding not open
By this ground, the applicant challenges the Tribunal’s factual conclusion (at [45]-[46] of its reasons) that G had not demonstrated his circumstances were so out of the ordinary or unusual as to cause the Tribunal, adopting the structure of the Citizenship Instructions, to re-think or re-consider the conclusion it was otherwise inclined to reach, that G’s application for approval should be refused. This ground is premised on that aspect of the Citizenship Instructions constituting a lawful policy, and in considering this ground I have also adopted that premise, although I have expressed doubts about the validity of the Citizenship Instructions in this respect.
The applicant contends the Tribunal’s finding in [46] that “there is no persuasive evidence that [G] would be in any danger if he is required to return to Albania with his parents” is incompatible with the Refugee Review Tribunal’s reasons, which included extensive discussion of, and findings in relation to, the real chance of significant harm that the Refugee Review Tribunal found G would in fact face if he was taken to Albania. He submits, in effect, that in the absence of the Tribunal engaging in detail with the Refugee Review Tribunal’s analysis and fact-finding, and considering updated or different material to that considered by the Refugee Review Tribunal (assuming this course was open to the Tribunal, which the applicant appeared to suggest it was not), it was not open to the Tribunal to reach the conclusion it did about the risk of harm to G in Albania.
The applicant submitted that the Tribunal’s only factual finding (that the events on which the Refugee Review Tribunal’s decision were based occurred more than 15 years earlier) ignores the express finding by the Refugee Review Tribunal at [156] of its reasons:
The Tribunal questioned the applicant’s parents about the length of time which had passed since the problem first arose, and queried whether they would still be at risk, but they were adamant that the problems has not gone away, asserting that as recently as 18 months ago strangers again tracked down [name redacted] mother in Italy, despite her having already relocated twice, wanting information about him. On one view it might appear odd that the events of 2003 would have consequences in 2012, as it is not immediately apparent why he would bother himself now with avenging a slight from more than nine years ago. On the other hand, it is the notion of honour which underpins the entire blood feud tradition, and as explained above at [114], a fiancé’s honour passes to the man’s family after engagement. As noted above, this principle is further underscored by the evidence which the applicant’s mother [name redacted] gave in camera.
I accept the applicant’s submission: this is a persuasive example of how the Tribunal’s findings simply ignored critical material.
Jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power: see the plurality reasons in Plaintiff M64 at [25], citing Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at 175 [27]; see also Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at 351, 352 [82]-[84]. These statements consciously use the term “material”, and do not refer to the kind of considerations generally associated with Peko Wallsend at 39-40 (Mason J). There are parallels with the error identified by the Full Court in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [38], [46], [48]-[50] and [52].
At a level of general proposition, it can be accepted, as the Minister submits (relying on NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, [10]-[14] that it is matter for the Tribunal to assess the probative value of the evidence before it and determine what weight to give to that evidence. General statements such as this take as their premise that a Tribunal has properly and conscientiously taken into account all relevant material. If it has not done so, the premise for this general proposition disappears. As MZYTS recognises, ignoring critical material may lead to a miscarriage of the statutory task. Where a decision-maker ignores material that bears upon the task to be performed (and therefore the power to be exercised), this is capable of demonstrating the jurisdiction conferred has not been exercised; or the legal authority to make the decision was absent (see Plaintiff M64 at [24]). Such cases are highly dependent on the particular statutory regime in issue and the facts of a given case.
If the Tribunal had sought to engage with the evidence and material before the Refugee Review Tribunal, and then before it, and actively to reason through why the findings by the Refugee Review Tribunal should no longer be accepted as reflecting any risks to G on return to Albania in the foreseeable future, then its conclusion that G’s circumstances were not “out of the ordinary” or “unusual” could be seen, at the least, to have a probative basis. Whether or not as a matter of law it would have been entitled to undertake such an exercise would have been a different question. However, on no view did the Tribunal attempt to undertake that task. It describes the risk to G in Albania (as a result of the blood feud) as “alleged” and finds that G’s mother was capable of protecting him from violence or abuse without identifying a probative basis for departing from the Refugee Review Tribunal’s finding that G would face a real chance of significant harm if he were to return to Albania. Its reasons disclose no consideration of G’s mother’s evidence about health facilities in Albania, nor of the Refugee Review Tribunal’s findings on this issue. It simply asserts there is no evidence medical facilities in Albania would be inadequate.
Ground 4 should be upheld. Further, the singular focus of the Tribunal on a search for a factor that was “unusual” or “out of the ordinary” about G’s circumstances, and in particular in these passages about why it considered it was acceptable for G to return to Albania, also provides evidence of the distraction that has been caused to the Tribunal’s statutory task by the structure and content of the Citizenship Instructions. The circumstances facing G on any possible return to Albania should have been seen as relatively removed from his eligibility, and suitability, for conferral of Australian citizenship. The grant of citizenship is, after all, concerned with making a person a full member of the Australian community, so that she or he can have the benefit of all the advantages of membership of that community, and assume all the responsibilities that membership entails. Fundamentally, the focus is on a person’s life and circumstances in Australia. However, it was the need – on the content of the Citizenship Instructions – to search for something “unusual” or “out of the ordinary” which appeared to have promoted this other focus, rather than concentrating on the purposes for the conferral of citizenship on a child applicant otherwise eligible, and whether there was anything inimical to those purposes which might justify refusal of approval.
Conclusion
The applicant is entitled to relief. The applicant is entitled to relief under the AD(JR) Act in relation to ground 1. I consider that, in addition to having proven AD(JR) Act errors in relation to grounds 2, 3 and 4, the Tribunal’s decision is also properly seen as affected by jurisdictional error, and the applicant is entitled to relief under s 39B of the Judiciary Act on these three grounds. The Minister made no submissions that relief should be refused on any discretionary basis.
As I noted at the start of these reasons, given that I have upheld ground 2 of the application, and given the nature of that ground, it may be appropriate to grant declaratory relief as well as the usual relief setting aside the Tribunal’s decision and requiring G’s application for review to be determined in accordance with law.
The parties will be given an opportunity to make submissions on appropriate relief, in light of the Court’s reasons for judgment, including as to costs.
I certify that the preceding two hundred and eighty-three (283) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer. Associate:
Dated: 17 August 2018
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