The Issues on the Application
12 The effect of the conduct of the Tribunal which the applicant challenges is to list his application for review on 5 November 2015 and not to adjourn the application until after 14 January 2016. As I understand it, if the hearing proceeds on 5 November 2015 the applicant accepts that his application for review will fail because of the operation of s 24(6)(g) of the Act.
13 In his application, the applicant seeks the following substantive orders:
...
3. An order directing the First Respondent to refraining from conducting a hearing of the review on 5 November 2015.
4 An order directing the First Respondent to consider the Applicant's application to adjourn the hearing of the review until after 14 January 2016 according to law.
14 Unless there was some reason to think that the Tribunal could not consider an application to adjourn the hearing of the review on or before 5 November 2015 (and there is no such reason suggested in this case), I would not make the order in paragraph 3 above even if the applicant was otherwise successful. The appropriate order if the applicant is successful is an order in terms of paragraph 4.
15 The applicant drew attention to the words "at a time" in the chapeau to sub-s 24(6), and the words "during the period" or "during any period" in paragraphs (a), (d), (e), (f), (g) and (h) of sub-s 24(6). He submitted that the Minister was not required to determine an application within a particular period of time. He submitted that it followed from these matters that there was nothing to prevent the Minister from postponing consideration of an application as the Minister considered appropriate. He submitted that these provisions were to be contrasted with the provisions of the Australian Citizenship Act 1948 (Cth) where the Minister was given an express power to defer consideration of an application until the end of a period determined by the Minister, but not so as to defer consideration of an application for a period that exceeded, or for periods that in total exceeded, 12 months (ss 14 and 14A of the Australian Citizenship Act 1948).
16 The applicant submitted that the Tribunal had all the powers and discretions that were conferred by relevant enactment on the delegate (s 43 of the AAT Act) and that it was to exercise its power of review having regard to the facts and circumstances as they exist at the time it is making its decision (Shi v Migration Agents Registration Authority (2008) 235 CLR 286). The applicant submitted that the Tribunal had a power to adjourn a proceeding for the review of a decision from time to time under s 40(1)(c) of the AAT Act.
17 The applicant submitted that in considering whether or not to adjourn the proceeding before it, the Tribunal committed an error of law in that it held that it would be improper to defer the matter until after January 2016. The applicant submitted that the Minister could have postponed consideration of the application from time to time and the Tribunal could do the same either because it could exercise the same powers as the Minister or by reason of its general power to adjourn the proceeding from time to time. The applicant submitted that, in any event, there was no reason to read down the general power to adjourn.
18 The applicant submitted that in addressing the applicant's application for an adjournment the Tribunal should have considered the following matters:
(1) the statutory objectives of both the Act and the AAT Act;
(2) the delay since the making of the application to the Minister;
(3) the facts and circumstances surrounding the conviction and the imposition of the good behaviour bond;
(4) the finite period sought for the adjournment;
(5) the short duration of the adjournment (when compared to the period that had elapsed since the making of the application to the Minister); and
(6) any prejudice that may be suffered by reason of the failure to adjourn.
19 The applicant submitted that the Tribunal erred in not taking these matters into account. It committed an error of law, or in the alternative, failed to take into account relevant considerations. In the further alternative, the applicant submitted that the Tribunal's exercise of its power was unreasonable (Minister for Immigration and Citizenship v Li and Another [2013] HCA 18; (2013) 249 CLR 332 (2013) 297 ALR 225).
20 In response, the Minister relied on my decision in Minister for Immigration and Citizenship v Hassani (2007) 219 FCR 144 ("Hassani"). That case involved the provisions of the previous Act, the Australian Citizenship Act 1948, and a respondent who faced criminal charges. The applicant was the Minister and the applications were made under the Administrative Decisions (Judicial Review) Act and s 39B of the Judiciary Act 1903 (Cth). I upheld the Minister's challenge to the Tribunal's decision to adjourn the application for review. I held that the Tribunal's exercise of the power to adjourn or defer, insofar as it relied on the power in s 14A of the Australian Citizenship Act 1948, had miscarried. As to the Tribunal's general power to adjourn, I held that that power was not excluded by the fact that the power to defer is a power available to the Tribunal. However, I held that the general power to adjourn was effected by the provisions of the Australian Citizenship Act 1948. I said that if an application was made to adjourn or defer an application for review on the ground that a charge was pending, it was appropriate that the decision-maker proceed under s 14A of the Australian Citizenship Act 1948 rather than the general power to adjourn in s 40(1) of the AAT Act. Secondly, and in any event, I said that I doubted whether there would be grounds to adjourn because of a pending charge. I said that the alternative to the granting of an adjournment would not be that the applicant for review would be required to compromise his or her right to silence before the hearing of the criminal charge because the effect of s 13(11)(a) of the Australian Citizenship Act 1948 was quite clear. The Minister was not to grant a certificate of Australian citizenship while proceedings for an offence were pending. I held that it would not be a proper exercise of the discretion to adjourn the application on the ground that criminal charges against the applicant were outstanding. I said (at [37]):
The exercise by the Tribunal of its general power to adjourn miscarried because it was not entitled to take into account the pending charge in considering whether to adjourn and, in any event, the Tribunal member misunderstood what would occur if the application was not adjourned. If not adjourned, then the application should have been listed and if the facts fell within s 13(11)(a) it should have been dismissed and the delegate's decision affirmed.
21 I do not think the words "at any time" and "during the period" or "during any period" lead to the conclusion that the Minister has the power to defer consideration of an application. They simply provide that the Minister is not to approve an application during the periods identified. Where an application is made, the Minister is required by s 24(1) of the Act to approve or refuse a person becoming an Australian citizen.
22 The Explanatory Memorandum for the Australian Citizenship Bill 2005 does not assist in terms of explaining the reasons an express power to defer of a similar nature to that contained in s 14(1) and s 14A(1) of the Australian Citizenship Act 1948 was not included in the Australian Citizenship Act 2007. It simply says that certain provisions, including ss 14 and 14A were no longer required and should be repealed.
23 As I understand it, there is no restriction under the Act on the applicant making another application for citizenship after January 2016. I think the removal of an express power to defer, albeit subject to a time limit, points in the opposite direction to that advanced by the applicant. In other words, it suggests to me that the Minister does not have power to defer consideration of an application. It is true that there is no time limit on the Minister's consideration of the matter and the complexities in the administrative steps and the information gathering process will vary from case to case. That means that the time periods within which applications will be determined will vary, but that is quite a different thing from the exercise of an express power to defer. I do not think the Minister has the power to postpone consideration of an application merely on the ground that a bar in paragraph 24(6)(g) will expire in the future.
24 I think that this case is, in one sense, stronger than that in Hassani because there is in this case no express power to defer. It is true that the Tribunal's general power to adjourn is unconfined in its terms, but it seems to me that there would need to be something in the Act to suggest that the future occurrence of an event identified in s 24(6) of the Act was a relevant consideration in terms of the general power to adjourn. I can find nothing in the Act to that effect. I will follow my decision in Hassani.
25 In his submissions, counsel for the applicant gave examples of cases where he submitted the Tribunal should be able to adjourn a hearing to allow a matter to expire or no longer be relevant. One example was of a case where a security or bond was to expire a few days after a scheduled Tribunal hearing. However, even if I am wrong in the conclusion I express above (at [24]) and the Tribunal could adjourn the hearing for a short period on the basis of such a consideration, that would be because of a consideration that the Tribunal was permitted to take into account but not required to take into account (Minister for Aboriginal Affairs and Another v Peko-Wallsend Ltd and Others (1986) 162 CLR 24 at 39 per Mason J (as his Honour then was)). It seems that the Tribunal did not take the expiry of the bond into account in this case, but in my opinion it was not bound to do so.