Budilay v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This appeal from the Administrative Appeals Tribunal ("the AAT") is brought by two Indonesian children - Kenneth Budilay who is 15 years old and Kellen Budilay who is 14 years old. The appeal concerns the refusal by the AAT, on 2 November 2010, of their applications to become Australian citizens. The AAT decision affirmed earlier decisions by a delegate of the first respondent ("the Minister") to the same effect. 2 Kenneth and Kellen first arrived in Australia on 29 August 1998 with their mother at the ages of almost three years old and one year old respectively. All three travelled on a tourist visa. Their mother made an application for a protection visa which was refused on 19 August 1999. Some time after, the Refugee Review Tribunal ("the RRT") affirmed the decision not to grant a protection visa on 24 February 2000, and the mother and the two children were removed from Australia to Indonesia on 1 December 2001. 3 On 14 January 2002 the mother and two children re-entered Australia on tourist visas under false names. A second application for a protection visa was refused. On 19 December 2002 the RRT affirmed that refusal. Nevertheless, it would appear that the mother and children remained in Australia. The applications for citizenship by Kenneth and Kellen with which the present proceedings are concerned were made on 26 February 2009. The applications were refused by a delegate of the Minister on 7 April 2010. Kenneth and Kellen each then applied to the AAT for review of the delegate's decision. In the AAT the parties consented to the AAT hearing both matters together. 4 The decisions of the delegate, and the decision of the AAT, were made pursuant to ss 21 and 24 of the Australian Citizenship Act 2007 (Cth) ("the Act"). At the time the applications for citizenship were made, ss 21 and 24 of the Act provided, so far as is relevant to the present proceedings, as follows: 21 Application and eligibility for citizenship (1) A person may make an application to the Minister to become an Australian citizen. … (5) A person is eligible to become an Australian citizen if the Minister is satisfied that the person is aged under 18 at the time the person made the application. 24 Minister's decision (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. (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), (7) or (8). 5 Other provisions of s 21 stated requirements for eligibility to make an application for Australian citizenship which, generally speaking, required some connection with Australia. For example, in some cases permanent residency in Australia was required (together with some additional entitling characteristic) (subss (2), (3), (4)). In those cases the additional requirements included successful completion of a citizenship test (subs (2)), permanent physical or mental incapacity (subs (3)), aged over 60 (subs (4)) or hearing, speech or sight impairment (subs (4)). In other cases, although permanent residency was not required, it was necessary that a parent of the applicant had earlier been an Australian citizen (subs (6)), a parent was born in Australia (subs (7)) or the applicant was born in Australia and was not a citizen or national of any country at the time the application was made (subs (8)). By contrast, s 21(5) imposed no additional requirement of a connection with Australia. 6 However, s 21 of the Act is addressed only to the question of eligibility to make an application for citizenship. It provides no legislative instruction about how an application for citizenship from an eligible person should be assessed. By contrast, s 24 of the Act does contain instructions about that matter. Apart from the provisions set out earlier, other provisions in s 24 directed that the Minister not approve an application by an eligible person in stated circumstances. Those circumstances included the need to establish identity (subs (3)), considerations arising from security assessments (subs (4)), convictions for security or serious criminal offences (subss (4A), (4B) and (4C)), not being present in Australia (subs (5)), pending or incomplete criminal proceedings or periods of imprisonment or bonds (subs (6)), recently completed imprisonment for serious matters (subs (6)) and recent cessation of Australian citizenship (subs (7)). None of those circumstances applied in the present case. There were no circumstances stated in s 24 in which the Minister was obliged to approve an application. 7 It is common ground that by the terms and operation of s 24, where there was no direction that an application not be approved, the Minister had a discretion whether to approve the application or not. That was the position with respect to the applications made by Kenneth and Kellen. 8 The effect, therefore, of the statutory scheme at that time, as it applied to Kenneth and Kellen, was that they were eligible to apply for citizenship because they were aged under 18 years of age (s 21(5)) but the Minister (and therefore the Minister's delegate and the AAT) had a discretion whether to approve or to refuse their applications (s 24(2)). That discretion was not limited by the Act itself. In Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24, Mason J pointed out (at 39-40) that: (b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. and (at 42): (e) The principles stated above apply to an administrative decision made by a Minister of the Crown …. However, in conformity with the principle expressed in (b) above, namely that relevant considerations may be gleaned from the subject-matter, scope and purpose of the Act, where the decision is made by a Minister of the Crown, due allowance may have to be made for the taking into account of broader policy considerations which may be relevant to the exercise of a ministerial discretion. (References omitted) 9 In a case earlier decided in this Court (Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 ("Drake")), which has since been regarded as setting out a reliable statement of general principle, Bowen CJ and Deane J said (at 419-420): There are circumstances in which an administrative officer is precluded from taking into account the dictates of general government policy in the exercise of a power conferred upon him by virtue of his office. Examples can readily be found among cases where the particular officer is charged with the exercise of a power by reference to defined criteria or considerations: R. v. Anderson; Ex parte Ipec-Air Pty. Ltd.; and see, for example, Finance Facilities Pty. Ltd. v. Federal Commissioner of Taxation. Ordinarily, however, an administrative officer charged with the exercise of discretionary power will be entitled, in the absence of specifically defined criteria or considerations, to take into account government policy. The propriety of paying regard to general policy considerations is most evident in a case such as the present where there are no specified statutory criteria for the exercise of the discretionary power and where the power is entrusted to a Minister of the Crown responsible to Parliament. 10 The Minister has issued instructions intended to guide decision makers in the exercise of the discretion under s 24 of the Act. Those instructions are the Australian Citizenship Instructions ("the ACIs"). The instructions commence with the following statement: 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. 11 It is clear, therefore, that the ACIs are not intended to dictate how the discretion under s 24 of the Act must be exercised, whether generally or in any particular case. 12 A decision of the AAT varies or substitutes for the decision of the decision maker which is under review (Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") s 43(6)). In Drake, Bowen CJ and Deane J said (at 419): The question for the determination of the Tribunal is whether that decision [the decision maker's] was the correct or preferable one on the material before the Tribunal. 13 Although the determination of the AAT is to be made on the material before the AAT (rather than simply on the material before the decision maker) the AAT may exercise all the powers and discretions conferred on the decision maker (AAT Act, s 43(1)). Subject to the necessity always to make its own independent assessment of the matter, the AAT in the present case was entitled, therefore, to take into account the guidelines contained in the ACIs and it is apparent that it did so. Counsel for the appellants argued that there was a further, specific, obligation on the AAT, arising outside the ACIs, with which the AAT did not comply. Before I identify that further suggested obligation it will be useful to identify the relevant statements in the ACIs, which are to be understood in the light of the introductory statement I earlier set out, as guidelines rather than directives. 14 The ACIs contained the following statements about the assessment of applications by persons eligible as a result of s 21(5) of the Act: The discretion in section 24(2) to refuse to approve an applicant becoming an Australian citizen despite being eligible under section 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. … The 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. 15 Then, the ACIs set out "Policy Guidelines" for consideration. They include the following: Applicants under the age of 16 … Children under the age of 16 applying individually in their own right would usually be approved under section 24 if they meet the following policy guidelines: ▪ hold a permanent visa … 16 Neither Kenneth or Kellen hold a permanent visa. The ACIs therefore did not suggest that their application would usually be approved (assuming other policy guidelines were met). 17 The ACIs also contained the following statement, relevant to their application: In the case of an applicant who does not meet the policy guidelines above, 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. The circumstances would need to be very unusual to warrant approval of an application outside policy. 18 When it made its decision in the present case the AAT did not set out the last sentence in this extract. It is clear from a fair reading of its decision that its assessment of Kenneth's and Kellen's circumstances did not occur by reference to any need for them to demonstrate "very unusual" circumstances. That could only have been to their advantage and no criticism was made of it on the present appeal. 19 The present appeal arises under s 44(1) of the AAT Act which provides: 44(1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. 20 The suggested error of law which arose for consideration in the present proceedings was identified as follows: The Tribunal committed reviewable error of law by not making a finding as to what were the best interests of the appellant children in the matter before it. 21 The issue was developed in written submissions for the children in the following way: 17. In the present case the Tribunal canvassed the submissions and AAT cases but neglected or omitted to decide what the best interests of each child applicant might be. It was therefore unable to decide what weight to give this factor. 18. The appellants submit that the Tribunal's omission or oversight is an error of law, and that the appropriate remedy is that their applications should be remitted to the Tribunal differently constituted, for consideration according to law. 22 At the hearing of the appeal, Mr Karp, who appeared for Kenneth and Kellen further developed the contention that the AAT had failed to decide, or make an appropriate finding about, what were their best interests. Mr Karp did not contend that any such obligation arose from the ACIs. He submitted that the obligation arose from the proper construction of s 24(2) of the Act, bearing in mind the terms of Article 3 of the United Nations Convention on the Rights of the Child ("the Convention"). Article 3-1 of the Convention provides: 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 23 The Convention has not been incorporated into Australian municipal law, although it was declared under s 47(1) of the Human Rights and Equal Opportunity Act 1986 (Cth) (now called the Australian Human Rights Commission Act 1986 (Cth)) to be an international instrument relating to human rights and freedoms. In Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 ("Teoh") Mason CJ and Deane J said (at 286-7): It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, not the Executive. So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law. In this case, it is common ground that the provisions of the Convention have not been incorporated in this way. It is not suggested that the declaration made pursuant to s 47(1) of the Human Rights and Equal Opportunity Commission Act has this effect. But the fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia's obligations under international law. 24 I shall give attention shortly to the terms of the AAT decision, but it is convenient to state at this point that I do not accept that Article 3 of the Convention takes the matter as far as Mr Karp suggested. Giving full weight to the approach which Mason CJ and Deane J indicated in Teoh (which was endorsed in substance or in terms by Toohey and Gaudron JJ) I do not see a relevant difference between the guidelines set out in the ACIs and the injunction in Article 3 of the Convention. Furthermore, the approach urged by Mr Karp would involve far more than preference for one construction of an ambiguous statutory provision over another. It would involve reading into s 24, as a matter of legislative instruction, something which was not there. That would not resolve an ambiguity; it would amend the legislation. In any event, I do not accept the contention that there was any relevant failure by the AAT to adequately state its conclusions about the best interests of the children, having regard to the arguments put to it. 25 In its decision, the AAT referred to the provisions of ss 21 and 24 of the Act which I earlier set out and to the guidance provided in the ACIs about the exercise of the Minister's discretion under s 24 of the Act. The AAT then said (at [10]): 10. Do the circumstances of each child warrant the conferral of Australian citizenship? This involves consideration of: (a) the full circumstances of the case; (b) the best interests of the child; and (c) whether the circumstances of the case are unusual. 26 Mr Karp suggested, in his oral submissions, that the AAT had thereafter done nothing more (or little more) than set out the arguments which were put to it and made a summary of various earlier AAT cases before coming to its conclusion which it expressed (at [45]) as follows: 45. In conclusion, having regard to the full circumstances of each case, including the best interests of the children, I do not consider the applications for citizenship to nevertheless warrant approval because of the unusual nature of those circumstances. 27 In my view, this analysis does insufficient justice to the terms of the AAT decision and gives insufficient recognition to the care with which the arguments put on behalf of Kenneth and Kellen were evaluated. 28 After it had (with respect, accurately) stated the matters requiring consideration, the AAT referred to written statements made, and oral evidence given, by Kenneth and Kellen for the purpose of the AAT hearing and then proceeded to a detailed discussion of the matters which it had identified as relevant to take into account. It dealt with the connection to Australia which the children had developed, with arguments on their behalf that a refusal decision would cause them significant hardship, to other factors stated on their behalf to be relevant, to submissions made about what were the best interests of the children and to whether their applications warranted approval because of the unusual nature of the circumstances. The structure of that discussion appears to have been substantially influenced by the structure of the submissions which were put on Kenneth's and Kellen's behalf. In that regard, the AAT observed that it was not clear to it why the "other factors" which it was asked to consider should be separately addressed from "the full circumstances of the case" and also that there was substantial overlap between considerations concerning the best interests of each child and whether there would be likely significant hardship and disadvantage if a discretion was not exercised in their favour. Nevertheless, the AAT observed the distinctions amongst those various matters which arose from the submissions made to it and expressed its conclusions in that context. 29 During the course of its discussion of the submissions which were made, the AAT provided its assessment of the strengths and weaknesses of the arguments which had been advanced. In some respects it accepted the contentions which were relied upon in support of the applications for citizenship. In some respects it did not. In cases where the contentions were not accepted an explanation was given. Thus, the AAT accepted the following matters: After 12 years in Australia Kenneth and Kellen have a reasonably close connection to Australia; They attend school in Australia and have made friends from differing backgrounds; They have already become members of the Australian community; Their preference is to complete their education in Australia; It would be easier for them to do so; Each considers Australia to be their home and they wish to make their lives here; They have spent the majority of their formative years in Australia; It was not necessarily in their best interest to remain with at least one of their parents (who were each likely to be removed from Australia). 30 On the other hand the following findings were also made: • There was insufficient evidence to support the claim made that Kenneth and Kellen were significantly limited by a lack of Indonesian language skills or would not be able to attend school in Indonesia or finish their education there; Even if they were required to repeat some schooling to attain their educational goals on return to Indonesia that did not constitute significant hardship or disadvantage; Not being able to complete their education in Australia would not, either, cause significant hardship or disadvantage; There are no Australian relatives, only family friends, and Kenneth and Kellen are not of an age to live independently in Australia; Lengthy residence in Australia is not, in itself, sufficient to demonstrate a connection to the Australian community so as to warrant departure from the policy; Apart from attendance at school and claimed involvement in the Hillsong Church Group there was no evidence of other significant connections to the Australian community; The children are of an age where they are likely to be able to adapt relatively easily, with the support of their parents and their family, to Indonesia. 31 Although these findings were made during the course of the AAT's discussion of the submissions that were made on behalf of Kenneth and Kellen, they are readily enough distilled from that discussion, even though they were not finally gathered together in a summary way. Consequently, had it been correct to conclude that the AAT was required to make a finding as to what were the best interests of the children I would not have accepted that such a finding was not sufficiently made, so as to disclose an error of law on the part of the AAT. 32 However, I do not accept that the suggested obligation was correctly identified in either the ground of the appeal or in the submissions which were advanced in support of it. First, there was no error in the AAT being guided by the ACIs provided it did not abdicate its function of making an independent assessment of the applications for citizenship and provided it did not overlook the fact that the ACIs themselves were expressed to be guidelines, were not to be applied inflexibly and were not to constrain the exercise of delegated powers under the Act. In my respectful view, the AAT did not make any of those errors. Secondly, the position should be no differently assessed if tested against the statements in Article 3 of the Convention. On either approach the AAT was not obliged to "decide" what the best interests of each child were or might be. At the highest, the AAT was obliged to treat the best interests of the child as a primary consideration. In my view, it is clear that it did so. 33 The AAT gave careful consideration to the matters which required its attention. It did not neglect or omit, as contended, to deal with any matter which required its attention. It did not fail to perform its functions as required. It did not make an error of law. The present appeal does not provide an opportunity to canvass the merits of the AAT decision. The appeal must, accordingly, be dismissed. Costs have been sought. There is no reason in principle to refuse that application. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.