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
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
Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315
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Details
- AGLC
- G v Minister for Immigration and Border Protection [2018] FCA 1229
- Case
- [2018] FCA 1229
- Decision Date
CaseChat Overview and Summary
G, a child born in Australia with a disability, sought judicial review of the Administrative Appeals Tribunal's decision to refuse his application for Australian citizenship. The dispute was primarily centered on whether the Tribunal correctly applied an executive policy in its decision-making process, particularly concerning the "best interests of the child." The court was tasked with determining whether the Tribunal erred in its interpretation and application of the policy, whether any aspects of the policy were unlawful, and if the Tribunal applied the policy too rigidly. Furthermore, the court examined whether the Tribunal made factual findings that were not supported by the evidence.
The court found that the Tribunal misconstrued its function by focusing on whether the delegate's refusal was correct rather than determining the preferable course of action based on the material before it. The court highlighted that the Tribunal should have undertaken a fresh consideration of the application, identifying its own issues and basing its review on the evidence and arguments presented. The court concluded that the Tribunal's approach led to an improper exercise of its discretionary powers under the Citizenship Act. The court also noted that the Citizenship Instructions, which effectively placed the burden on the applicant to justify the necessity of citizenship, were inconsistent with the statutory framework.
The court allowed the application for judicial review, finding that the Tribunal had indeed erred in its construction and application of the executive policy. The court's decision was grounded in the proper interpretation of the Tribunal's review function and the statutory requirements under the Citizenship Act. Consequently, the Tribunal's decision was quashed, and the matter was remitted for reconsideration in light of the court's findings.
The court issued orders for the parties to submit a joint proposed set of orders by a specified deadline, with an alternative deadline for filing proposed orders and submissions if no agreement was reached. These orders facilitated a prompt and structured process for finalizing the judicial review outcome.
The court found that the Tribunal misconstrued its function by focusing on whether the delegate's refusal was correct rather than determining the preferable course of action based on the material before it. The court highlighted that the Tribunal should have undertaken a fresh consideration of the application, identifying its own issues and basing its review on the evidence and arguments presented. The court concluded that the Tribunal's approach led to an improper exercise of its discretionary powers under the Citizenship Act. The court also noted that the Citizenship Instructions, which effectively placed the burden on the applicant to justify the necessity of citizenship, were inconsistent with the statutory framework.
The court allowed the application for judicial review, finding that the Tribunal had indeed erred in its construction and application of the executive policy. The court's decision was grounded in the proper interpretation of the Tribunal's review function and the statutory requirements under the Citizenship Act. Consequently, the Tribunal's decision was quashed, and the matter was remitted for reconsideration in light of the court's findings.
The court issued orders for the parties to submit a joint proposed set of orders by a specified deadline, with an alternative deadline for filing proposed orders and submissions if no agreement was reached. These orders facilitated a prompt and structured process for finalizing the judicial review outcome.
Orders
Orders of the court
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.
Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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.
Ratio Decidendi
Legal Principle Established
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