ADMINISTRATIVE LAW – executive policy – Australian Citizenship Act 2007 (Cth) – Australian Citizenship Instructions – where primary judge declared part of the Instructions (being an executive policy) to be inconsistent with the Act and unlawful – principles applicable to whether an executive policy is inconsistent with a statute and unlawful
CITIZENSHIP – citizenship by conferral – children under 16 years – Australian Citizenship Instructions – whether a part of the Instructions (relating to children under 16 years seeking citizenship by conferral) was inconsistent with the Australian Citizenship Act 2007 (Cth) and therefore unlawful
Administrative and Constitutional Law and Human Rights
Category:
Catchwords
Number of paragraphs:
79
Counsel for the Appellant:
Mr R Knowles with Mr C Tran
Solicitor for the Appellant:
Sparke Helmore Lawyers
Counsel for the First Respondent:
Ms L De Ferrari SC with Mr M Guo
Solicitor for the First Respondent:
Asylum Seeker Resource Centre
Counsel for the Second Respondent:
The Second Respondent filed a submitting notice, save as to costs
ORDERS
VID 1165 of 2018
BETWEEN:
MINISTER FOR HOME AFFAIRS
Appellant
AND:
G
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGES:
MURPHY, MOSHINSKY AND O’CALLAGHAN JJ
DATE OF ORDER:
21 MAY 2019
THE COURT ORDERS THAT:
1.The name…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Minister for Home Affairs v G [2019] FCAFC 79
Case
[2019] FCAFC 79
Decision Date
CaseChat Overview and Summary
The case before the court was between the Minister for Home Affairs and a minor, referred to as "G", who sought to be granted Australian citizenship. The dispute centred on the interpretation and application of certain provisions of the Australian Citizenship Instructions (ACI) and whether these were consistent with the Australian Citizenship Act 2007 (Cth). The case was heard in the Federal Court of Australia. The court was required to determine the legal issues surrounding the application of the Australian Citizenship Instructions, particularly in relation to children under 16 years of age seeking citizenship by conferral, and whether certain parts of the Instructions were inconsistent with the Australian Citizenship Act 2007 (Cth), rendering them unlawful. The court examined the relationship between the ACI and the Act, focusing on the principles that govern the consistency of executive policies with statutes.
The court found that the primary judge had erred in declaring certain parts of the ACI to be inconsistent with the Act and unlawful. The court held that the Instructions were intended to provide guidance on policy and should not be applied inflexibly, and that policy cannot constrain the exercise of delegated powers under the Act. The court emphasised that decision-makers must consider the full circumstances of the case, including the best interests of the child, when determining whether to approve an application that does not meet the policy guidelines. The court concluded that the relevant parts of the ACI were consistent with the Act and lawful, and that the appeal should be allowed. The declaration made by the primary judge was set aside, and the Minister for Home Affairs was ordered to pay the costs of the appeal.
Orders
Orders of the court
1. The name of the appellant be changed to the Minister for Home Affairs.
2. The appeal be allowed.
3. The declaration in paragraph 4 of the orders of the primary judge dated 5 September 2018 be set aside.
4. The appellant pay the first respondent’s costs of the appeal, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
The introduction to the 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.(Emphasis added.) Chapter 5 of the Instructions deals with citizenship by conferral. It is divided into 31 sections, numbered from 5.1 to 5.31. Of principal relevance for present purposes is section 5.12, which deals with persons aged under 18 years. Section 5.12 is itself divided into eight sections, numbered 5.12.1 to 5.12.8. Sections 5.12.1 and 5.12.2 are in the following terms:5.12.1 When was application receivedFor applications received before 9 November 2009, refer to the Act and ACIs in effect immediately before 9 November 2009.For applications received on or after 9 November 2009, a person under the age of 18 years applying for Australian citizenship by conferral under s21(5), must be a permanent resident (that is, they must have activated their permanent visa) at the time of application and at the time of decision to be eligible for Australian citizenship.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 discretion in s24(2) to refuse to approve an applicant becoming an Australian citizen despite being eligible under s21(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.5.12.2 Best interests of the childThe best interests of the child are to be considered as one of the primary considerations when assessing the application. This consideration only applies if the child is or would be less than 18 years of age at the time of decision on the application and the child is living in Australia. See Chapter 18 – Best interests of the child. Section 5.12.5 provides:5.12.5 Applicants under the age of 16A 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.Children under 16 applying individually in their own rightChildren 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:•are under 16 when applying and living with a responsible parent who is an Australian citizen and who consents to the application or•are 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•are 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•are 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•are 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.Children under 16 applying on the same form and at the same time as a responsible parentChildren under 16 applying on the same form and at the same time as a responsible parent 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:•the child was living in Australia with the relevant responsible parent and•the relevant responsible parent consented to the inclusion of the child in their application.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.Note: Decision makers must make a separate decision record for each applicant included on the application if the application is to be refused.Note: If a child under 16 applies on the same form and at the same time as a responsible parent, and that parent is refused, the child must be assessed against the policy guidelines for children under the age of 16 applying individually in their own right.The parts of section 5.12.5 that are particularly relevant are the second paragraph (commencing “In the case of …”), the paragraph immediately after the heading “Children under 16 applying individually in their own right” and the third bullet point under that heading.