.............[sgd]..........................................................

PRACTICE AND PROCEDURE - scope of Tribunal's review - application for Australian citizenship by conferral refused on basis that delegate was not satisfied of applicant's identity - whether Tribunal limited to considering the issue of the applicant's identity in the application for review - all eligibility criteria and grounds of refusal are in issue for the Tribunal in considering the application for review.

Acts Interpretation Act 1901 s 34AB

Administrative Appeals Tribunal Act 1975 ss 2A, 25, 33, 39, 43

Australian Citizenship Act 2007 ss 19G, 21, 24, 52, 53

Migration Act 1958 s 501

Social Security Act 1991

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; 24 ALR 577; 2 ALD 60

Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342; 87 ALR 506; 15 ALD 671; 9 AAR 255

Hospital Benefit Fund v Minister for Health [1992] FCA 599; (1992) 39 FCR 225; 111 ALR 1; 16 AAR 566; 28 ALD 50

Lees v Comcare [1999] FCA 753; (1999) 29 AAR 350; 56 ALD 84

Minister for Immigration and Multicultural Affairs v Jia Le Geng [2001] HCA 17; (2001) 205 CLR 507; 178 ALR 421; 65 ALD 1

Re Lavery and Registrar, Supreme Court of Queensland and Ors (No. 2) (1996) 23 AAR 52

Re Sleiman and Companies and Auditors and Liquidators Disciplinary Board [2007] AATA 1892; (2007) 46 AAR 374; 98 ALD 170

Re De Brett Investments Pty Ltd and Australian Fisheries Management Authority and 4 Seas Pty Ltd (party joined) [2004] AATA 704; (2004) 82 ALD 163

1. In a letter dated 23 August 2017, a delegate of the Minister wrote to Mr Hussain Hazara advising him that the application he had lodged on 7 December 2015 for Australian citizenship under the Australian Citizenship Act 2007 (AC Act) had been refused. A Decision Record was attached and the delegate advised him that it set out the reasons for the decision. Those reasons focused, in the main, on the delegate's not being satisfied of Mr Hussain Hazara's identity. The delegate did not consider whether Mr Hussain Hazara's application must be refused for other reasons specified in s 24 or whether he satisfied all of the eligibility criteria, and particularly the criterion that he be of good character, specified in s 21. The matter is yet to be set down for hearing but, as a preliminary issue, the parties have not been able to agree whether the whole of the decision is to be reviewed against all of the relevant criteria or whether the review should be limited to those criteria that have been considered and assessed by the delegate.

1. I have decided that the delegate's decision has been made under s 24 of the AC Act and is the final and operative decision on Mr Hussain Hazara's application for approval of his becoming an Australian citizen. That means that, on review, all of the issues raised by ss 21 and 24 must be considered. It may be that the parties reach agreement regarding some of those issues but, in so far as they do not, I will hold a directions hearing to discuss the future conduct of the matter and make a timetable for the lodgement of any further evidence or evidentiary material.

1. The AC Act establishes several distinct avenues by which a person either automatically acquires Australian citizenship or acquires it by application. This is a case that concerns acquisition by an avenue that is characterised as acquisition by application. In particular, it is concerned with acquisition of Australian citizenship by conferral.

Acquisition of Australian citizenship by conferral

1. That avenue is the subject of Subdivision B of Division 2 of Part 2 of the AC Act. Even within that avenue, there are seven situations in which a person may be eligible to become an Australian citizen under that Subdivision. They are summarised in outline only in s 19G for the criteria for each are set out fully in the relevant sub-sections following the summary:

"You may be eligible to become an Australian citizen under this Subdivision in 7 situations:

· you satisfy the general eligibility criteria and have successfully completed a citizenship test: see subsections 21(2) and (2A); or

· you have a permanent or enduring physical or mental incapacity: see subsection 21(3); or

· you are aged 60 or over or have a hearing, speech or sight impairment: see subsection 21(4); or

· you were born to a former Australian citizen: see subsection 21(6); or

· you were born in Papua: see subsection 21(7); or

· you are a stateless person: see subsection 21(8).

You must make an application to become an Australian citizen. The Minister must approve or refuse you becoming an Australian citizen.

1. Even if a person meets the criteria applicable to one or other of the seven situations and so is eligible for Australian citizenship, he or she may be refused citizenship if the Minister is, in summary:

"... required to refuse your application on grounds relating to:

· non-satisfaction of identity: see subsection 24(3); or

· national security: see subsections 24(4) to (4C); or

· non-presence in Australia: see subsection 24(5); or

· cessation of citizenship: see subsection 24(7).

You may need to make a pledge of commitment to become an Australian citizen."[2]

Acquisition of Australian citizenship by conferral by satisfying general eligibility criteria

1. A person who applies for Australian citizenship must apply on the relevant form approved by the Minister. In Mr Hussain Hazara's situation, the approved form was Form 1300t, which he completed and lodged electronically on 7 December 2015.[3] The form asks a series of questions framed in terms that are relevant to an assessment of the eligibility criteria in s 21(2) and the grounds of refusal in s 24 of the AC Act. Under the heading "Character declarations", Mr Hussain Hazara answered each of the following questions:

"Has the applicant been convicted of, or found guilty of, any offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any 'spent' convictions)?

Has the applicant been confined in a prison or in a psychiatric institution by order of a court made in connection with criminal proceedings overseas or in Australia?

Has the applicant committed or been involved in the commission of war crimes or crimes against humanity or human rights overseas or in Australia?

Is the applicant presently under a probation order, good behaviour bond, on parole, released on licence or subject to periodic detention overseas or in Australia?

Is the applicant aware of any proceedings pending against them overseas or in Australia for an offence, including proceedings by way of appeal or review?

Has the applicant ever been involved in any activity, or been convicted of any offence, relating to the illegal movement of people to any country (including Australia)?

Has the applicant ever been charged with any offence overseas or in Australia that is currently awaiting legal action?

Has the applicant ever been associated with terrorist organisations or involved in acts of terrorism overseas or in Australia?

Has the applicant ever been removed or deported from any country (including Australia)?

Has the applicant ever been involved in activities that would represent a risk to Australian national security?

1. Mr Hussain Hazara also made an Identity Declaration on Form 1195 and completed Form 80, which is headed "Personal particulars for assessment including character assessment". He included supporting documents including a Statutory Declaration that he made.[5]

1. Under s 21(1) of the AC Act, a person may make an application to the Minister to become an Australian citizen. Section 21(2) sets out the general eligibility criteria that a person must meet:

"A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

(a) is aged 18 or over at the time the person made the application; and

(i) at the time the person made the application; and

(ii) at the time of the Minister's decision on the application; and

(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and

(d) understands the nature of an application under subsection (1); and

(e) possess a basic knowledge of the English language; and

(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and

(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

(h) is of good character at the time of the Minister's decision on that application."

1. These criteria are the subject of other provisions of the AC Act, which complement or qualify these criteria. So, for example, the residence requirements are expanded upon by ss 22, 22A, 22B and 23. Section 21(2A) qualifies the criteria in ss 21(2)(d), (e) and (f) by providing that they:

"... are taken to be satisfied if and only if the Minister is satisfied that the following apply:

(a) the person has sat a test approved in a determination under section 23A;

(b) the person was eligible to sit that test (worked out in accordance with that determination);

(c) the person started that test within the period worked out in accordance with that determination and completed that test within the period (the relevant test period) worked out in accordance with that determination;

(d) the person successfully completed that test (worked out in accordance with that determination) within the relevant test period."

B. The Minister's decision regarding an application under section 21

"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.

Note: The Minister may cancel an approval: see section 25."

1. It is not enough that a person satisfies the relevant eligibility criteria for a person in his or her situation. While the Minister must not approve a person becoming an Australian citizen if he or she does not meet the relevant eligibility criteria,[6] s 24(2) provides that:

"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) or (7)."

1. Even if a person does meet the relevant criteria, ss 24(3) to (7) of the AC Act set out the circumstances in which the Minister must not approve his or her becoming an Australian citizen. Of relevance in this case is s 24(3), which relates to a person's identity and provides:

"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."

Review of decision made on application for Australian citizenship

1. Section 53 of the AC Act provides that, apart from the function conferred by s 23A regarding the approval of a citizenship test, the Minister may delegate his or her functions or powers under that enactment. That is what has happened in this case and the decision has been made by a delegate of the Minister. For the purposes of the AC Act, the delegate's decision is deemed to be that of the Minister by virtue of s 34AB(1)(c) of the Acts Interpretation Act 1901.

"An application may be made to the Administrative Appeals Tribunal for review of the following decisions:

(b) a decision under section 24 to refuse to approve a person becoming an Australian citizen;

1. There is a qualification to the right to make an application conferred by s 52(1)(b). It is a qualification that applies when the Minister's reasons for making a decision under s 24 refusing to approve a person's becoming an Australian citizen does not refer to the eligibility ground relating to statelessness in s 21(8) and the person is aged 18 years or over at the time of making an application to become an Australian citizen. If that is the case, the person cannot apply for review of the decision unless he or she is a permanent resident.[7] That qualification does not apply as Mr Hussain Hazara is a permanent resident.

1. If a person does lodge an application for review of a decision made under s 24, the Tribunal must neither exercise the power under ss 22A(1A) or 22B(1A) nor review any exercise, or failure to exercise, that power.[8]

1. The Decision Record completed by the delegate is a template, which sets out standard passages relating to what is required by the AC Act but which allows for the addition of personal information relating to the applicant and for the delegate's reasons. Each of the eligibility criteria is set out followed by three boxes, one of which must be marked with a cross.

1. With the exception of the eligibility criteria relating to residence, which are marked slightly differently, those boxes are labelled "Satisfied", "Not Satisfied" and "Not Assessed". The delegate marked the boxes relating to age (s 21(2)(a)), permanent residence (s 21(2)(b)) and residence requirement (s 21(2)(c)) as "Satisfied". The boxes labelled "Not assessed" were marked against the eligibility criteria relating to knowledge of the English language, Australia and responsibilities and privileges of Australian citizenship (ss 21(2)(d), (e) and (f)), likelihood of continuing to reside in, or to maintain close and continuing association with, Australia (s 21(2)(g)) and being a person of good character (s 21(2)(h)). The reason for their not being assessed was that "... prohibition applies under subsection 24(3)".[9] That is a reference to the Minister's being prevented from approving a person's becoming an Australian citizen unless she is satisfied of the identity of the person.

1. The same box was marked in relation to the criteria set out in ss 24(4) (adverse or qualified security assessment under the Australian Security Intelligence Organisation Act 1979), 24(4A) (born in Australia but convicted of a national security offence or sentenced to a term of imprisonment of at least five years), 24(4A)(b) (born outside Australia to a parent who was an Australian citizen and convicted of a national security offence), 24(6) (proceedings for offences still pending or where a certain period of time has not passed since period of sentence completed etc) and 24(7) (less than 12 months since the person last ceased to be an Australian citizen).

"You have made an application to become an Australian citizen under section 21(1) of the Act. In accordance with section 24(1) of the Act I must make a decision to approve or refuse to approve you becoming an Australian citizen.

You have not made any claims that are relevant to subsections 21(3), (4), (5), (6), (7) or (8) so I cannot be satisfied that you satisfy any of these subsections.

I have considered your application against the requirements set out in subsection 21(2) of the Act.

I am prohibited from approving your application for conferral of citizenship because one or some of the circumstances set out below apply to you:

☒ Subsection 24(3) I am not satisfied of your identity

◻ Subsection 24(4) you have an adverse security assessment or a qualified security assessment

◻ Subsection 24(4A) you have been convicted of a national security offence or an offence against an Australian law or foreign law for which you were sentenced to a period of imprisonment of five years or more

◻ Subsection 24(5) you were not present in Australia at the time of decision and were not eligible for the special residence requirement of the Ministerial discretion

◻ Subsection 24(6) matters outstanding before a court or insufficient time has passed since you were released from a term of imprisonment

◻ Subsection 24(7) you ceased to be an Australian Citizen less than 12 months prior to your application"

1. On behalf of Mr Hussain Hazara, Ms Jenkins of counsel submitted that the scope of the Tribunal's review should include the issue of character under s 21(2)(h) of the AC Act as well as the issue of identity under s 24(3). The issues of character and identity are inextricably linked. Mr Hussain Hazara's credibility is a real issue in the assessment of his identity and evidence of his credibility will also go to resolution of the character criterion. To consider both matters in the one hearing would promote the Tribunal's objective of providing a mechanism of review that is "fair, just, economical, informal and quick" as required by s 2A(b) of the Administrative Appeals Tribunal Act 1975 (AAT Act). In doing so, the direct and indirect costs and burdens of participating in the proceedings would be minimised for both Mr Hussain Hazara and for the Minister. If the scope of review were limited to the issue of identity, the matter would have to return to the primary decision-maker for further assessment were Mr Hussain Hazara successful with regard to that issue.

1. On behalf of the Minister, Ms Jackson submitted that it is not in dispute that a decision to refuse the application for citizenship on identity grounds made under s 24(3) of the AC Act is reviewable by the Tribunal.[10] It is similarly uncontroversial that the Tribunal would have jurisdiction to review a decision made under s 24(1A) of the AC Act to refuse Mr Hussain Hazara's application for citizenship on the basis that he failed to meet the eligibility criteria, which includes the good character criterion in s 21(2)(h).

1. Section 25(4A) of the AAT Act permits the Tribunal to determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues that it considers. What are the factors that are relevant in determining whether the Tribunal should limit the questions of fact, evidence and issues that it considers? The Minister submitted that the scope of the review should be determined by reference to the objects of the AAT Act set out in s 2A. As a general principle, where a delegate has made an adverse decision on particular criteria or issues, the Tribunal should restrict its review to those matters. Citing Drake v Minister for Immigration and Ethnic Affairs,[11] Ms Jackson submitted that this accords with the Tribunal's duty to conduct a de novo review of the decision i.e. whether the decision was the correct or preferable decision on the material before the Tribunal.

1. The decision currently before the Tribunal is in respect of identity only and no decision has been made regarding character at all. There is no suggestion on the materials currently available that Mr Hussain Hazara's character will be in dispute but there is no indication whether it will, or will not, ultimately be put in issue by the Minister. While there may be some overlap in some circumstances, the Minister submitted that to enlarge the scope of the review in circumstances where character is not presently in issue would not meet the Tribunal's objectives of providing review that is economical and quick. Consideration of character issues should not arise for the first time in the Tribunal proceedings. There is no material before the Tribunal going to character and no documents such as penal clearance certificates from countries in which Mr Hussain Hazara has lived in the past. Obtaining evidentiary material and documents would necessarily delay the resolution of the application for review.

1. The Minister submitted that, if the Tribunal is satisfied of Mr Hussain Hazara's identity, the appropriate path would be for it to make a decision and remit the matter to the delegate to consider other criteria, including character, which are yet to be assessed and which are yet to be the subject of a primary decision. Should any subsequent decision be adverse to him, it would be reviewable by the Tribunal. That path would, the Minister submitted, promote public trust and confidence by ensuring certainty in the scope of the Tribunal's decision-making.

1. The submissions made on behalf of the Minister are based on a premiss that has two parts. The first is that the Minister or his delegate may potentially make a series of decisions on a single application for Australian citizenship by conferral. Each of those decisions may address a separate eligibility criterion under s 21(2) or a separate ground of refusal under s 24 of the AC Act. Where the delegate is not satisfied that the applicant for Australian citizenship has met one of the relevant eligibility criteria or one of the grounds of refusal has arisen, that delegate may make a decision refusing the application for Australian citizenship. Each refusal decision confers a right on the applicant for Australian citizenship to apply to the Tribunal for review of the refusal decision but, on the Minister's submission, only in relation to that particular basis on which the delegate refused the application. The consequence would be that an applicant would have to make an application to the Tribunal for review of the delegate's decision and, if successful, would have to make a further application for review to the Tribunal if the delegate found that he or she had not satisfied another eligibility criterion or another ground of refusal arose under s 24. Apart from the length of time involved in this, the practical outcome would seem to be that the applicant for Australian citizenship would be faced each time with the payment of an application fee of, currently, $884, or of a lesser application fee according to his or her financial circumstances. That cost is quite apart from any costs an applicant incurs in seeking advice and being represented in the proceedings.

1. This would seem to be the thinking behind the Decision Record that the delegate prepared in this case. It would seem that the delegate first decided whether an applicant for Australian citizenship has satisfied the most basic of the eligibility criteria under s 21(2) such as age, permanent residency and general residence. He then looked at the grounds specified in s 24(3) to (7) requiring the Minister to refuse the application. Having decided that he was not satisfied of Mr Hussain Hazara's identity as required by s 24(3), the delegate made his decision to refuse Mr Hussain Hazara's application for citizenship. He reached his decision without assessing the remaining eligibility criteria or grounds on which he was required to refuse the application.

1. Mr Hussain Hazara had to satisfy every eligibility criterion under s 21(2) and the Minister had to be satisfied that he was not obliged to refuse the application under s 24. The delegate, on the other hand, was not necessarily obliged in every case to assess every eligibility criteria before making a decision to refuse the application. He was not obliged to consider every one of the grounds on which he was required to refuse the application. If the delegate decided, as he did, that he was required to refuse Mr Hussain Hazara's application on one of the grounds under s 24, he was entitled to refuse the application without further ado. Mr Hussain Hazara was entitled to lodge an application for review of that decision to the Tribunal.

1. It does not follow, however, that the Tribunal is limited to the grounds on which the delegate made his decision or, if it should come to pass that Mr Hussain Hazara's application for review were successful, the Minister or her delegate could revisit the decision and make another decision on his application for Australian citizenship. The explanation for that lies in the characterisation of the decision that the Tribunal is reviewing and the parameters of that review.

1. The starting point for my explanation lies in s 25 of the AAT Act. Section 25(1) provides that:

"An enactment may provide that applications may be made to the Tribunal:

(a) for review of decisions made in the exercise of powers conferred by that enactment; or

(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment."

1. In this case, the AC Act is an enactment that has provided that an application may be made to the Tribunal for review of decisions made under eight different sections. It provides for that review in s 52(1) and I have set that provision out at [14] above together with the qualification on the right to make an application found in s 52(2). In this case, Mr Hussain Hazara was entitled to make an application to the Tribunal for review of "a decision under s 24 to refuse to approve a person becoming an Australian citizen".[12] The AC Act contemplates that the Minister, or his delegate, will make one decision, being either to approve or refuse to approve a person's becoming an Australian citizen on each application made under s 21. That is clear from the wording of s 24(1). Provision is made only for approval, or refusal to approve, the person's becoming an Australian citizen and there would seem to be no room on the face of s 24(1) to make successive decisions on what is the ultimate and only question that is to be addressed when a person makes a claim for Australian citizenship under s 21: is the person to be approved or is approval to be refused?

1. It is important to isolate the actual decision which is under review. That decision needs to be isolated so that the issues and questions that the delegate, and so primary decisionmaker in this case, needed to consider and decide can also be isolated. Isolating them is necessary because, in reviewing that decision, the Tribunal is obliged to consider the same issues and questions in order to review the decision made by the primary decision-maker.[13] If, for example, a delegate of the Secretary of the Department of Social Services were to make a decision cancelling a person's entitlement to a pension from a certain date, the Tribunal would, in reviewing the decision, have to decide whether cancelling the pension entitlement was the correct or preferable decision. It could not go on to decide that, even though it affirmed the cancellation decision, the person was entitled to a pension at a later date. Like its predecessor, the Social Security Act 1947, the Social Security Act 1991 generally requires a person to make a claim for each particular pension entitlement. The Secretary's power to make a decision regarding a particular pension entitlement does not arise until the relevant claim has been made. The Tribunal can only consider whether there is such a pension entitlement after a claim has been made, a primary decision has been made and reconsidered and a further application for review made to the Tribunal.[14]

1. There are instances in which the decision that is made by the primary decision-maker and that must be reviewed by the Tribunal is not, in the overall context, the final or ultimate decision that a primary decision-maker is required to make in a matter. It may be that a claim or application made to a Minister or agency raises a number of issues that must be addressed and requires a number of decisions to be made before the ultimate or final decision may be made. The claimant or applicant may be entitled to seek review of some of those intermediate decisions and not others and may or may not be able to seek review of the final or ultimate decision.

1. A decision made under s 501 of the Migration Act 1958 (Migration Act) to refuse an application for a visa is an example of a decision that may be made but which, if answered in the applicant's favour, does not decide the ultimate or final question raised by the application for the visa i.e. whether the applicant is entitled to a visa under the Migration Act as sought. If, on review of the decision made under s 501 to refuse an application on the basis that the applicant does not pass the character test, the Tribunal were to set aside that decision, it may not substitute a decision that the person is entitled to a visa. Entitlement to a visa is the final or ultimate decision to be made but the decision under s 501 is but one of the interim decisions that may be made in the course of considering the application. The Tribunal's decision is limited to whether or not the application should, or should not, be refused under s 501 and the matter remitted to the primary decision-maker to consider the other issues that must be addressed in considering an application for a visa.

1. Once the decision under review and so the relevant question has been identified, subsidiary questions arise as to the nature of the evidence or evidentiary material to which the Tribunal may have regard and the extent of the powers that it has in making its decision on review. The latter subsidiary question is the subject of s 43(1) when it provides:

"For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision ...".

1. In this way, the Tribunal's powers and discretions in any particular matter are, unless the Parliament provides otherwise,[15] aligned with those of the primary decision-maker. The same questions must be asked and answered in making the first decision at the primary level of decision-making or on review, be that review at an intermediate internal review level or in the Tribunal. In particular:

"... The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage."[16]

1. The former subsidiary question must be considered in light of the Tribunal's powers regarding procedural matters rather than its powers following review of the decision. Those powers are found, in part, in s 33(1)(c) of the AAT Act when it provides:

(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate."

1. Without limiting the operation of s 33, s 33(2A) sets out examples of the directions the Tribunal might make. It might, for example:

"(a) require any person who is a party to the proceeding to provide further information in relation to the proceeding; or

(b) require the person who made the decision to provide a statement of the grounds on which the application will be resisted at the hearing; or

(c) require any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing; or

1. The power of the Tribunal to require the parties to put their present positions is consistent with the function of the Tribunal in reviewing an administrative decision. It extends to the parties' putting their present positions with regard to legal contentions, the lodgement of further evidence or evidentiary material and the consideration of issues that arise in the context of the ultimate question or issue to be asked on merits review of an administrative decision. This approach is compatible with the statement of principles found in the following passage from Drake v Minister for Immigration and Ethnic Affairs (Drake):

" The question for determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. The Act offers little general guidance on the criteria and rules which the Tribunal is to apply in the performance of its task of reviewing administrative decisions which are subjected to its surveillance. Even in a case such as the present where the legislation under which the relevant decision was made fails to specify the particular criteria or considerations which are relevant to the decision, the Tribunal is not, however, at large. In its proceedings, it is obliged to act judicially, that is to say, with judicial fairness and detachment. In its review of an administrative decision, it is subject to the general constraints to which the administrative officer whose decision is under review was subject, namely, that the relevant power must not be exercised for a purpose other than that for which it exists ..., that regard must be had to the relevant considerations, and that matters 'absolutely apart from the matters which by the law ought to be taken into consideration' must be ignored ..."[17]

1. I remain of the same view that I expressed in Re Lavery and Registrar, Supreme Court of Queensland and Ors (No. 2)[18] after considering the authorities and the AAT Act:

" It follows from the purpose of administrative review, as well as from the specific provisions of the AAT Act to which I have referred, that a decision maker may seek to support the decision on a basis completely different from that upon which it was originally made. Equally, a person applying for review of that decision may seek to have it set aside on a basis completely different from that which he, she or it originally put to the decision maker. As the purpose of the proceedings in the Tribunal is to reach the correct and [sic[19]] preferable decision and not to decide any application by stealth or entrapment, all parties are, subject only to exceptions not relevant in this case, required to put their whole case on the table before the proceedings commence."[20]

1. I am not persuaded otherwise by s 25(4A) of the AAT Act when it provides:

"The Tribunal may determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues that it considers."

There are circumstances in which it is appropriate to exercise the power given by s 25(4A). They will be circumstances that will be identified, in part, by bearing in mind the exhortation found in s 2A that the Tribunal pursue, among others, the objectives of fairness, justice, economy, informality and speed. Perhaps more importantly, they will be identified also by bearing in mind the obligation imposed by s 39(1) of the AAT Act that:

"Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents."

1. While s 39(3) expressly states that s 39 does not limit s 25(4A), the obligation imposed on the Tribunal by s 39(1) of the AAT Act remains one of the factors that must be kept in mind in considering whether, and if so how, it will exercise its power to determine the scope of the review. Another is the duty imposed on it by s 43 and explained in Drake to review the decision and yet another to have regard to the exhortatory provisions of s 2A directed to the mechanism of review that the Tribunal must pursue. The application for review of the decision that brought all of these factors into play cannot be ignored either for Parliament has given the person the right to ask for the decision to be reviewed. As Senior Member Taylor said in Re Sleiman and Companies and Auditors and Liquidators Disciplinary Board:[21]

"12. The Tribunal's mandatory objective under section 2A of the AAT Act, and its power under subsection 25(4A), permit the Tribunal to confine the issues and evidence it considers. Those powers could not be used to justify orders precluding effective review of decisions falling within the Tribunal's proper review jurisdiction. But the amplitude of the language is certainly apt to permit the Tribunal to limit the scope of its review function to a consideration of matters that are truly material to the determination of the review proceedings. ...

16. Properly understood, subsection 25(4A) of the AAT Act does permit the Tribunal to determine the scope of its review function. The language of the subsection permits limits relating to facts, evidence and issues. The appropriate scope of any restriction will depend on the circumstances of the particular case."[22]

1. The decision that the delegate, and so the Minister, has made in this case was to refuse to approve Mr Hussain Hazara's becoming an Australian citizen. That is one of the only two ultimate or final decisions that the Minister is permitted to make under s 24 when a person makes an application under s 21. Having made that decision, there is no opportunity to make the ultimate or final decision again because what s 24 requires to be decided has been decided. In other words, having refused his application on one ground, there is nothing left of the power conferred by s 24 and no other power permitting the Minister to make a further decision on a different ground. The Minister or his delegate would not be free to make a further decision on Mr Hussain Hazara's application for Australian citizenship because the matter would be at an end. The Minister, or his delegate, has exhausted his powers and duties in relation to Mr Hussain Hazara's application and is functus officio.

1. That remains the case even if I were to find that I were satisfied as to Mr Hussain Hazara's identity. The delegate's decision under s 24(1) would remain and the Tribunal must review the merits of that decision for it is that decision in relation to which Mr Hussain Hazara is permitted by s 52(1)(b) to make an application for review. The question the Tribunal would need to ask itself on that review is whether a decision should be made to approve, or to refuse to approve, Mr Hussain Hazara's becoming an Australian citizen. It would need to satisfy itself of all of the eligibility criteria specified in s 21(2) and also be satisfied that the remaining grounds of refusal specified in s 24 do not apply.

1. To limit the issues in this case to that of Mr Hussain Hazara's identity would be contrary to the Tribunal's duty to conduct merits review of the decision made by the Minister's delegate. The delegate has exhausted the decision-making power under s 24 by choosing to make the decision he did on the basis of his assessment of a single relevant issue but the Tribunal's duty remains to review the merits of that decision. A review of the merits of the decision made by the delegate requires it to consider all of the relevant issues raised by ss 21 and 24 in order to decide whether approving, or refusing to approve, Mr Hussain Hazara's becoming an Australian citizen is, in the words of Bowen CJ and Deane J in Drake, the "... correct or preferable one on the material before the Tribunal ..." (emphasis added).

1. My conclusion that the scope of the review extends to a consideration of all of the eligibility criteria and grounds of refusal under s 24 does not automatically lead to the conclusion that they all need to be reviewed by the Tribunal at the one time. Some may be agreed between the parties and that would seem to be the case in relation to those such as Mr Hussain Hazara's age, permanent residency and general residence. Others may come into play at a later stage and it may be that consideration of them can be adjourned by the Tribunal. That will give the parties the opportunity to gather relevant evidence. If the parties cannot agree on them, the matter will come back to the Tribunal to continue the hearing that will have begun with those eligibility criteria and grounds of refusal that are immediately in dispute.

1. The two criteria that are in issue at the moment between the parties are identity under s 24(3) and character under s 21(2)(h). It is apparent from the application form that Mr Hussain Hazara was asked to complete that the information it sought might well relate to issues of identity and issues of convictions relevant to s 24(4A) if not national security relevant to s 24(4). It is not so easy to see that the information the application form sought under the heading of "Character declarations" and reproduced at [6] above is all of the information that is relevant to an assessment of his character and a conclusion whether he is of good character at the time of the Minister's, and so the Tribunal's decision, on the issue. As Gummow J said in Minister for Immigration and Multicultural Affairs v Jia Le Geng:[23]

" There was also a substantial measure of agreement as to the meaning and effect of s 501. Counsel for the Minister accepted that, in the application of s 501(2)(a)(i), the Minister was bound to consider whether the person in question was of good character at the time of the decision, that 'character' was a matter of enduring moral qualities, that is to say, disposition rather than general reputation ..., and that past conviction of serious crime did not necessarily mean, without examination of any other matters, that a person was of bad character at the time of decision-making. As Latham CJ put it, in In re Davis_, '[a] man may be guilty of grave wrongdoing and may subsequently become a man of good character.' This submission was consistent with the Procedures Advice Manual made available for the use of departmental officers, and with the approach taken by the authors of the departmental minutes provided to the Minister in relation to the challenged decisions._"[24]

1. Evidentiary material relating to Mr Hussain Hazara's identity may well have relevance in deciding whether he is a person of good character. It is difficult to see why the two issues should not be considered at the same time. That is the more efficient way to proceed. It is said that the Minister's Department has not obtained the police clearance certificates overseas since it received Mr Hussain Hazara's initial application to it. With that in mind, I will hold a further directions hearing that will canvass all of the issues that are raised by ss 21 and 24 of the AC Act and that have not been resolved between the parties.

I certify that the preceding forty eight (48) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie

........[sgd]................................................................

[11] (1979) 46 FLR 409; 24 ALR 577; 2 ALD 60 at 419; 589; 68; per Bowen CJ and Deane J

[13] Hospital Benefit Fund v Minister for Health [1992] FCA 599; (1992) 39 FCR 225; 111 ALR 1; 16 AAR 566; 28 ALD 50 at [23]; 234; 11, 575; 59 per Wilcox, Burchett and French JJ.

[14] Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342; 87 ALR 506; 15 ALD 671; 9 AAR 255 at 345; 509; 674; 258 per Davies J. If the initial claim had been for a pension and the claim refused, the principles would be the same but outcome slightly different. The question to be answered by both the primary decision-maker and the Tribunal would be whether the claimant for the pension was entitled to it. That is a question which can be asked and answered at the time the claim was lodged but which can equally be validly asked and answered at the time that the Tribunal makes its decision. This is "... because the function of the Administrative Appeals Tribunal formed part of the administrative continuum and, in reviewing a refusal to grant a pension or benefit that had been applied for, it was proper for the Tribunal to consider the entitlement to the pension not only as at the date of the application for the pension or benefit or at the date of the decision refusing to grant it but also up to the time of the Tribunal's decision.": [1988] FCA 294; (1988) 19 FCR 342; 87 ALR 506; 15 ALD 671; 9 AAR 255 at 345; 509; 674; 258 per Davies J.

[15] An example arises in relation to the limitation placed on the Tribunal's powers by s 52(3) when it is reviewing a decision under s 24 of the AC Act. It cannot exercise the power conferred by ss 22A(1A) or 22B(1A) of the AC Act, which are powers that must be exercised personally by the Minister, even though the Tribunal may review any decision made personally by the Minister to refuse to approve a person's becoming an Australian citizen.

[16] Lees v Comcare [1999] FCA 753; (1999) 29 AAR 350; 56 ALD 84 at [39]; 360; 93 per Wilcox, Tamberlin and Branson JJ

[17] (1979) 46 FLR 409; 24 ALR 577; 2 ALD 60 at 419; 589; 68-69; per Bowen CJ and Deane J (citations omitted)

[18] (1996) 23 AAR 52

[19] Although I referred to the "correct and preferable" decision in this matter, I note that the description adopted by Bowen CJ and Deane J in Drake was "correct or preferable". I explained why the word "or" was used by his Honour in Re De Brett Investments Pty Ltd and Australian Fisheries Management Authority and 4 Seas Pty Ltd (party joined) [2004] AATA 704; (2004) 82 ALD 163 at [121]; 194. I said: "... The Tribunal may conclude that there is only one decision that is correct on the facts it has found on the evidence and according to the law that it must apply. It then makes its decision accordingly. In other circumstances, it may conclude that more than one decision may correctly be made. If that is so, the role of the Tribunal is to determine which decision is the preferable decision and so the correct and preferable decision."

[20] (1996) 23 AAR 52 at 56

[21] [2007] AATA 1892; (2007) 46 AAR 374; 98 ALD 170

[22] [2007] AATA 1892; (2007) 46 AAR 374; 98 ALD 170 at [12] and [16]; 379; 174-175

[23] [2001] HCA 17; (2001) 205 CLR 507; 178 ALR 421; 65 ALD 1

[24] [2001] HCA 17; (2001) 205 CLR 507; 178 ALR 421; 65 ALD 1 at [65]; 529-530; 436; 16 (citation omitted)