The Tribunal's decision
71 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).
72 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).
73 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).
74 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.
75 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.
76 The miscarriage continues in the very next paragraph. At [5], the Tribunal stated:
In determining this, the Tribunal must consider:
• Is it in the best interests of GZQZ that he be granted Australian citizenship?
• Would GZQZ otherwise suffer significant hardship and disadvantage if his application for Australian citizenship is refused?; and
• 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?
77 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.
78 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).
79 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.
80 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.
81 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.
82 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.
83 Having adopted that as a starting point, the Tribunal then applies, step by step, the contents of the Citizenship Instructions.
84 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.
85 All premised, as I have noted, on refusal being the starting point, and the "usual" outcome.
86 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.
87 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.
88 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).
89 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)
90 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.
91 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.
92 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?
93 Again, this is but one component of the Tribunal's task. The core task for the Tribunal is that in s 24(1).
94 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.
95 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.
96 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.
97 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.
98 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?
99 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.
100 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.
101 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.
102 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.
103 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.
104 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.
105 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?
106 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.
107 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.
108 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.
109 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.
110 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.
111 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.
112 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?
113 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.
114 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.
115 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.
116 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.
117 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.
118 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.
119 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.
120 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.
121 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.
122 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.
123 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)
124 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.