TWWH and Minister for Home Affairs (Citizenship)
[2018] AATA 3371
•29 August 2018
TWWH and Minister for Home Affairs (Citizenship) [2018] AATA 3371 (29 August 2018)
Division:General Division
File Number: 2018/4804
Re:TWWH
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date:29 August 2018
Place:Melbourne
The Tribunal refuses to make an order under s 41(2) of the Administrative Appeals Tribunal Act 1975 as requested by the applicant.
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Deputy President S A Forgie
PRACTICE AND PROCEDURE – application for citizenship by descent refused – application for a stay – orders sought for removal of applicant and his mother to Australia from China – consideration of scope of power to stay - orders refused.
LEGISLATION
Administrative Appeals Tribunal Act 1975 ss 25(1), 33(1), 40(1) 41(1), 41(2), 41(3), 42A, 42B, 43, 43(1), 43(2), 43(2A) and 43(2B)
Australian Citizenship Act 2007 ss 16, 16(1), 16(2), 16(2)(a), 16(2)(b), 16(2)(c), 17 and 19A
Social Security Act 1991
CASES
Civil Aviation Safety Authority v Hotop [2005] FCA 1023; (2005) 145 FCR 232
Federal Commissioner of Taxation v Administrative Appeals Tribunal [2011] FCAFC 37; (2011) 191 FCR 400; 276 ALR 231; 82 ATR 663
Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1
Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23
Re Alexander and Migration Agents’ Registration Board [1995] AATA 261;
(1995) 40 ALD 99
Re Trades College Australia Pty Ltd and Australian Skills Quality Authority
[2018] AATA 1703
Tait v The Queen [1962] HCA 57; (1962) 108 CLR 620
Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509
REASONS FOR DECISION
Deputy President S A Forgie
On 27 August 2018, the applicant, TWWH, applied for review of a decision made by a delegate of the Minister for Home Affairs (Minister) refusing an application by his son, the citizenship applicant, for Australian citizenship by descent under s 16 of the Australian Citizenship Act 2007 (AC Act). In essence, the delegate refused the application after finding that she was not satisfied that TWWH is the citizenship applicant’s father and was not satisfied of the citizenship applicant’s identity. Therefore, she was not satisfied that the citizenship applicant is eligible for Australian citizenship under s 16(2) of the AC Act.
TWWH has asked that the Tribunal order the Minister to take all necessary steps to bring his son and his wife to Australia from China where they live. All three are ethnic Uighur people. TWWH made that application under s 41(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act) because he fears that his son will be taken from his mother on 31 August 2018 when he turns one year old and placed in an orphanage in China. If that happens, TWWH understands that his son will be given a Han Chinese name in place of his Uighur name and become untraceable by his family for ever more. At the same time, TWWH fears that his wife will be placed in detention by Chinese authorities. She was placed in detention for some two weeks or so at some point after giving birth to the citizenship applicant but was released as she was breast feeding her son.
At the hearing Mr Burnside QC, senior counsel for TWWH submitted that I should make the orders he sought to secure the effectiveness of the hearing and the determination of the review. If the child were lost to his mother in China, the Tribunal’s function in reviewing the Minister’s decision would be pointless. The Tribunal must be able to make orders to secure the subject matter of its powers just as the High Court could secure the subject matter to enable it to give proper consideration to the motions made to it. The High Court took that step in Tait v The Queen.[1] The subject matter was Mr Tait himself and the High Court found that it had power to order the stay of his execution while it considered an application for special leave to appeal against a judgment of the Full Court of the Supreme Court of Victoria dismissing an appeal from a decision by a single Judge to dismiss a petition seeking an inquiry into Mr Tait’s sanity at the time he murdered another person. Mr Burnside submitted that a similar power to act in that way is given to the Tribunal by s 41(2). On behalf of the Minister, Ms Nance submitted that it did not and that no power to do so is to be found either in the AAT Act or in the AC Act.
[1] [1962] HCA 57; (1962) 108 CLR 620; Dixon CJ, McTiernan, Kitto, Taylor and Windeyer JJ
I have decided that I do not have the power to make the orders sought by TWWH and have refused his application under s 41(2). I set out my reasons below.
LEGISLATIVE BACKGROUND
Australian Citizenship Act 2007: section 16
Section 16(1) of the AC Act provides that a person may make an application to the Minister to become an Australian citizen. As a responsible parent for the citizenship applicant, his mother had consented to the application made by TWWH on behalf of his son. Section 16 required the citizenship applicant to satisfy the criteria set out in s 16(2) as he was born outside Australia on or after 26 January 1949. For the purposes of this hearing only, I note that the requirements of s 16(2)(b) did not become relevant. Those requirements relate to TWWH’s being an Australian citizen and having been present in Australia (except as an unlawful non-citizen) for a total period of at least two years at any time before he made the application.
Sections 16(2)(a) and (c) were relevant and provide:
“A person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if:
(a)a parent of the person was an Australian citizen at the time of the birth; and
(b)…
(c)if the person is or has ever been a national or a citizen of any country, or if article 1(2)(iii) of the Stateless Persons Convention applies to the person, and the person is aged 18 or over at the time the person made the application – the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.”
Section 19A reinforces the requirement of s 16(2)(a). It begins by referring to s 19, which provides that a person becomes an Australian citizen under Subdivision A of Division 2 of Part 2 of the AC Act relating to citizenship by descent on the day on which the Minister approves his or her becoming an Australian citizen. Section 19A provides that:
“Despite section 19, a person does not become an Australian citizen under this Subdivision, even if the Minister approves the person becoming an Australian citizen, unless:
(a)if the person was born on or after 26 January 1949 – a parent of the person was an Australian citizen at the time of the person’s birth; …
(b)…”
Section 17 regulates the Minister’s decision. It provides:
“(1) If a person makes an application under section 16, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
(1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 16(2) or (3).
(2)Subject to this section, the Minister must approve the person becoming an Australian citizen if the person is eligible to become an Australian citizen under subsection 16(2) or (3).
Identity
(3)The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Note:Division 5 contains the identity provisions.
National security
(4)If the person is not covered by subsection (4B), the Minister must not approve the person becoming an Australian citizen at a time when an adverse security assessment, or a qualified security assessment, in respect of the person is in force under the Australian Security Intelligence Organisation Act 1979 that the person is directly or indirectly a risk to security (within the meaning of section 4 of that Act).
(4A)If the person is covered by subsection (4B), the Minister must not approve the person becoming an Australian citizen if the person has been convicted of a national security offence.
(4B)A person is covered by this subsection if:
(a)at the time the person made the application under section 16, the person:
(i)is not a national of any country; and
(ii)is not a citizen of any country; and
(b)at the time of the person’s birth, the person had a parent who was an Australian citizen.
Cessation of citizenship
(5)If the person has at any time ceased to be an Australian citizen, the Minister must not approve the person becoming an Australian citizen during the period of 12 months starting on the day on which the person ceased, or last ceased, to be an Australian citizen.”
Administrative Appeals Tribunal Act 1975: section 41(2)
Before turning to s 41(2), it is important to have regard to the principle set out in s 41(1) when it provides:
“Subject to this section, the making of an application to the Tribunal for a review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision.”
Section 41(2) provides:
“The Tribunal may, on request being made by a party to the proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.
Note:…”
Where an order has been made and is in force, the Tribunal may, on request being made by a party to the relevant proceeding, make an order varying or revoking that order.[2]
[2] AAT Act; s 41(3)
CONSIDERATION
The Tribunal is a body established by statute and its powers are limited to those given to it by statute. Those powers may be expressly stated or may be implicit. Unlike a court of record, however, the Tribunal cannot draw on what for a superior court of record would be its inherent power.[3] It may review only those decisions in relation to which an enactment has provided that an application may be made to it for review. That is the effect of s 25(1) of the AAT Act.[4] For the purpose of reviewing a decision, the Tribunal may exercise all of the powers and discretions that are conferred by any enactment on the person who made the decision. Having done that, it is required to make a decision in writing affirming the decision under review, varying that decision or setting it aside and either making a decision in substitution for that decision or remitting the matter for reconsideration in accordance with any directions or recommendations. That is the effect of s 43(1) of the AAT Act. Reasons for the Tribunal’s decision are dealt with separately in ss 43(2), (2A) and (2B).
[3] See, for example, the inherent powers of a Supreme Court to stay further proceedings where a proceeding, be it civil or criminal, would be unfair and an abuse of process: Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23; Mason CJ, Brennan, Deane, Toohey and Gaudron JJ and referred to in Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1; Mason CJ, Brennan, Deane, Dawson and Toohey JJ at 6 per Deane J. See also Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509; Mason CJ, Brennan, Dawson, Toohey and McHugh; Deane and Gaudron JJ dissenting at 519 per majority.
[4] See also Federal Commissioner of Taxation v Administrative Appeals Tribunal [2011] FCAFC 37; (2011) 191 FCR 400; 276 ALR 231; 82 ATR 663 at [14]; 404; 234 per Keane CJ and Gordon J; Downes J dissenting but not on this point.
The Tribunal’s powers are not limited to those of review. The AAT Act also gives it powers to manage its proceedings. Section 33(1), for example, provides that, in a proceeding before it, the procedure of the Tribunal is, subject to the AAT Act, regulations and any other enactment, within the discretion of the Tribunal. It is given powers such as the power to take evidence on oath or affirmation, to proceed in the absence of a party who has had reasonable notice of the proceeding and the power to adjourn the proceeding.[5] The Tribunal is given various powers to dismiss applications without proceeding to a hearing. They are found in ss 42A and 42B of the AAT Act. These are examples only of the powers given to the Tribunal but they are indicative of the nature of the powers given to the Tribunal. Powers that would be inherent powers in a superior court of record are expressly conferred by statute on the Tribunal.
[5] AAT Act; s 40(1)
That means that I must look closely at the powers that I am given. The only power identified by the parties, and I agree with them, is s 41(2). Although the focus is usually upon s 41(2), it is important to read it with s 41(1) for that provides the starting point for any consideration. The fact that an application has been made to the Tribunal does not affect the “operation of the decision or prevent the taking of action to implement the decision.” That is to say, the decision stands. It will operate and action can be taken to implement it unless an order is made under s 41(2).
Staying with s 41(1), it requires identification of the decision whose operation is under consideration. I will illustrate its operation by reference to an age pension under the Social Security Act 1991. Centrelink may decide that a person who has been in receipt of an age pension is no longer entitled to that pension because his assets exceed the value of assets that he or she may hold and still receive an age pension. It will cancel the person’s age pension. That is the decision. The decision will operate immediately but Centrelink has to take steps to implement its decision. Those steps may include making changes to its payment systems to remove the person’s name, raising a debt for the amount of age pension overpaid and notifying the man. If the Tribunal were to stay the operation of the decision to cancel the age pension, the effect would be to reinstate payment of that pension.
If another person, who is not in receipt of age pension but who holds the same value of assets as the first person, were to apply for an age pension, Centrelink would refuse his or her application. In that case, the refusal is the decision. It also operates immediately but, apart from notifying the person of the decision, no other steps need be taken to implement it. If an order were made under s 41(2) staying the operation of the decision, the effect of the order would be to stay the decision refusing the age pension but it would not lead to payment of the age pension. The effect of the stay order would be to take matters back to the stage where the application for an age pension was yet to be decided. The stay power under s 41(2) could not be used to decide to pay the age pension for that decision can only be made by the Tribunal after reviewing the decision and exercising its powers in accordance with s 43 of the AAT Act.
Both the decision, on the one hand, and the operation or implementation of that decision have to be kept in mind when reading s 41(2). Assuming that the Tribunal has taken into account the interests of any persons who may be affected by the review of the decision and assuming that it is of the opinion that it is desirable to do so, it may make an order of a kind set out in s 41(2) i.e. “… such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.” This has to be looked at carefully.
Section 41(2) does not give the Tribunal power to make three types of order: a stay order; an order otherwise affecting the operation or implementation of the decision; or an order that “…the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review”. There are only two types of order that the Tribunal may make under s 41(2). First, it may make “… such order or orders … staying … the decision …”. Second, it may make “… such order or orders … otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision …”. Whether the Tribunal makes the first type of order or the second, each is qualified by the remaining words in s 41(2). That is to say, whether the Tribunal makes a stay order or an order otherwise affecting the operation or implementation of the decision, its order must be the order it “… considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.”
The consequence is that the starting point in considering the power given to the Tribunal under s 41(2) is the decision itself. In this case, it is a decision to refuse an application for the grant of Australian citizenship by descent. If I were to stay that decision, the practical result would be that I would suspend the decision made by the Minister to refuse the application by TWWH’s son for Australian citizenship by descent. For all practical purposes, his application for Australian citizenship would remain on foot but undecided. If I were to decide not to stay the decision but to prevent its being implemented, that would serve no practical purpose. The decision refusing the citizenship applicant’s application would remain. Any steps to implement it have already been taken with the notification of the decision to TWWH. Implementation or operation of the decision does not require the citizenship applicant’s presence in Australia or that of his mother.
In the case of a refusal of an application for Australian citizenship as with most decisions refusing an entitlement, I do not get to the point where I can consider the form of an order that would secure the effectiveness of the hearing and determination of the application for review. I do not have the power to take positive steps beyond those of the power to stay (i.e. the power to postpone or suspend) and the powers to otherwise affect the operation or implementation of the decision under review. It was suggested to me that a decision could be made to give the citizenship applicant temporary Australian citizenship. Such a decision could not be made by the Minister for the AC Act does not provide for the grant of Australian citizenship for a temporary purpose. If it were suggested that the citizenship applicant should be granted Australian citizenship under s 16 of the AC Act, the Minister’s delegate has already exhausted his power under s 16 by making a decision on the citizenship applicant’s application. I am not aware of any other power that he could exercise to achieve the outcome sought on the citizenship applicant’s behalf. I could make a decision to grant the citizenship applicant’s application but only after using my powers to review the Minister’s decision and relying on the powers given to me by s 43(1). Such a decision could not be made under s 41(2). The power under s 41(2) is focused on the decision that has been made and not on a decision that could have been made. Section 41(2) requires me to maintain that very narrow focus.
Once I have decided that the exercise of those powers will not achieve the outcome that TWWH seeks in this case, there is no point in considering the purpose for which I could make such an order i.e. for the purpose of securing the effectiveness of the hearing and determination of the application for review.
During the hearing, I mentioned a judgment of Siopis J in which his Honour had concluded that the power given under s 41(2) could be used to make a positive decision. The case was Civil Aviation Safety Authority v Hotop[6] (CASA v Hotop). I have considered that judgment in Re Trades College Australia Pty Ltd and Australian Skills Quality Authority[7] (TCA) and adopt the reasons that I set out in that case at [23]-[36] as part of these reasons. In essence, the reasoning of Siopis J is in the following passage of his judgment:
“ I deal firstly with the argument in relation to the limits on the power of the Tribunal to make orders under s 41(2) of the AAT Act. The powers conferred on the Tribunal by s 41(2) of the AAT Act are to be exercised for the purpose of securing the effective hearing and determination of the review application. This is apparent from the terms of the section itself; and, further, in the Yolbir case the Full Court said at 250:
‘In the present case, the relevant decision was the decision that Mr Yolbir’s pension be cancelled. That decision, that Mr Yolbir’s pension be cancelled, was “the decision as affirmed” for the purposes of s 1283(2) of the Social Security Act. It follows that on the application made by Mr Yolbir, the Administrative Appeals Tribunal had power to restore the pension under s 41 of the AAT Act, if this were appropriate for the purpose of securing the effectiveness of the hearing and the determination of the application for review.’
It follows that I accept the applicant’s argument that the Tribunal’s power to make orders under s 41(2) of the AAT Act depends on the Tribunal being able to grant effective relief in relation to the impugned decision at the ultimate hearing of the review application. It will be a question in each case, therefore, whether the decision the subject of the review application is a decision in respect of which the Tribunal may be able to grant effective relief at the ultimate hearing, having regard to its statutory function as a body empowered to conduct a merits review of the impugned decision. In this regard it is significant that s 43 of the AAT Act provides that the Tribunal has the power to substitute its decision for the decision of the decision‑maker under review; and for the Tribunal’s decision to be deemed to take effect at the time of the decision under review.”[8]
[6] [2005] FCA 1023; (2005) 145 FCR 232; Siopis J
[7] [2018] AATA 1703
[8] [2005] FCA 1023; (2005) 145 FCR 232 at [40]-[42]; 240
In TCA, I respectfully analysed the authorities upon which his Honour relied and concluded that they do not support his conclusion. I continue to hold the view that the correct view of s 41(2) is reflected in the passage from the reasons for decision of Deputy President McMahon was correct when he said in Re Alexander and Migration Agents’ Registration Board:[9]
“ The power is given to enable the tribunal to preserve the status quo, so as to ensure that a continuum which is broken by a reviewable decision may be reinstated in order to secure the ultimate effectiveness of the hearing. …
…
… Section 41(2) is not positive in its effect but merely negative. The content of the power is limited by its legislative intendment. It is intended to preserve the situation obtaining prior to the reviewable decision. It is not intended to change the situation entirely and put the applicant in a different position from what he would have been in prior to the reviewable decision. …”[10]
[9] (1995) 40 ALD 99
[10] [1995] AATA 261; (1995) 40 ALD 99 at 102-103
DECISION
For these reasons, I have decided to refuse to make an order under s 41(2) of the AAT Act.
| I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie |
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Associate
Dated: 29 August 2018
| Heard: | 28 August 2018 |
| Counsel for the Applicant: Solicitor for the Applicant: Solicitor for the Respondent: | Mr Julian Burnside QC Marque Lawyers Ms Emily Nance |
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