Minister for Home Affairs v Zadeh

THE POWER TO ORDER A STAY 19 This Court has the power to make orders staying a decision or part of a decision of the Tribunal under s 44A(2) of the Administrative Appeals Tribunal Act 1975 (Cth). That section provides: Where an appeal is instituted in the Federal Court of Australia from a decision of the Tribunal, that Court or a Judge of that Court may make such order or orders staying or otherwise affecting the operation or implementation of either or both of the following: (a) the decision of the Tribunal or a part of that decision; and (b) the decision to which the proceeding before the Tribunal related or a part of that decision; as that Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal. 20 As Griffiths J observed in Ekinci v Civil Aviation Safety Authority [2014] FCA 905 at [13]: The effect of that provision is to confirm that merely because an appeal has been lodged against a decision of the AAT, does not mean that the operation of the decision or its implementation is affected. However, there is a discretion in the Court to make an order staying or otherwise affecting the operation or implementation of either part or all of the AAT's decision if the Court considers that it is appropriate for the purpose of securing the effectiveness of the hearing and the determination of the appeal. 21 It has been said that the discretion conferred by s 44A(2) should only be exercised where the particular circumstances justify departure from the rule that a successful litigant is entitled to the fruits of a decision pending the appeal, such as where the appeal might otherwise be rendered nugatory - see: Comcare v Nicolas [2014] FCA 638 at [6], per Edmonds J, citing Broadbent v Civil Aviation Safety Authority [1999] FCA 1871 at [5], [6]; Hartnett v Migration Agents Registration Authority [2003] FCA 998 at [4]; Theo v The Secretary, Department of Family Services [2004] FCA 1748 at [5]. 22 The discretion conferred by the section is broad and there is no reason to graft qualifications onto its clear words. As Yates J said in Aspen Pharma Pty Ltd v H Lundbeck A/S [2013] FCA 324 at [31]-[32]: 31. In considering applications for a stay under s 44A(2) of the AAT Act, this Court has applied principles akin to those involved in granting interlocutory injunctive relief: see, for example, Minister of State for Education and Youth Affairs v Bracken (1984) 6 FCR 197 at 200; Broadbent v Civil Aviation Safety Authority [1999] FCA 1871 at [6]; Catena v Australian Securities and Investment Commission [2010] FCA 598 at [12]; Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd [2008] FCA 1867 at [39]-[40]. In some cases, it has been said that the discretion conferred by the provision should only be exercised where "special circumstances" justify departure from the rule that a successful litigant is entitled to the fruits of judgment pending appeal: see, for example, Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis [2010] FCA 880 at [20]. It has also been said that the purpose of the provision is to ensure that the subject matter of the appeal is not rendered nugatory by the implementation or coming into effect of the decision under appeal: see, for example, Theo v The Secretary, Department of Family Services [2004] FCA 1748 at [5]; Hartnett v Migration Agents Registration Authority [2003] FCA 998 at [4]-[6]; Mouratidis at [20]. 32. The first of these qualifications may simply reflect the fact that a favourable exercise of the discretion involves a change from the prima facie position under s 44A(1) of the AAT Act that an appeal to the Court does not affect the operation of the decision or prevent the taking of action to implement it. The second qualification exemplifies why the discretion might be exercised favourably in given circumstances. However, neither qualification should be grafted onto the clear words of the provision so as to limit the occasions on which the broad discretion it confers should be exercised. 23 Whether or not a stay should be ordered depends upon whether the Court considers it appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal. Considerations relevant to the exercise of the Court's discretion, which are not confined, include: (1) As a general rule the successful party is entitled to the benefit of the judgment which is presumed to be correct. (2) The applicant bears an onus to demonstrate a proper basis for a stay. (3) Although speculation as to the prospects of success is generally unnecessary, a stay will not be granted in the absence of arguable grounds of appeal or where the appeal is not bona fide. (4) On the other hand, if it appears that the prospect of success is strong, this may in the circumstances of the particular case be a relevant factor to consider in exercise of the discretion and may interact with considerations of balance of convenience; if the prospect of the appeal succeeding is particularly strong then the appellant may have to show less in terms of balance of convenience. (5) All other things being equal, a stay will generally be granted if, but for a stay, the appeal would be rendered nugatory if the appeal is successful. (6) Considerations such as the balance of convenience and the competing rights of the parties and the effect of granting or not granting the stay on non-parties are to be weighed in the balance. 24 Before turning to consider whether a stay should be ordered, something should be said about the statutory scheme.

The Statutory Scheme 25 Subdivision B of Division 2 of the Citizenship Act deals with "Citizenship by conferral". The "simplified outline" of the subdivision indicates that there are seven situations in which "you" may be eligible to become an Australian citizen - see: s 19G. It is the first which is presently relevant: [Y]ou satisfy the general eligibility criteria and have successfully completed a citizenship test: see s 21(2) and (2A); … 26 Section 20 provides: A person becomes an Australian citizen under this Subdivision if: (a) the Minister decides under subsection 24(1) to approve the person becoming an Australian citizen; and (b) if the person is required to make a pledge of commitment to become an Australian citizen - the person makes that pledge. 27 Section 21 permits a person to make an application to the Minister to become an Australian citizen and imposes conditions on eligibility. In summary, the conditions are that the person: (a) is 18 years or over; (b) is a permanent resident at the time he or she makes the application and also at the time of the Minister's decision; (c) and (g) satisfies certain residency requirements; (d) understands the nature of the application; (e) possesses a basic knowledge of the English language; (f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and (h) is of good character at the time of the decision. 28 Section 21(2A) provides: Paragraphs (2)(d), (e) and (f) 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. 29 Section 24 of the Citizenship Act relevantly provides that: (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. Note: The Minister may cancel an approval: see section 25. (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) or (7). … 30 As noted earlier, the relevant test is one approved by the Minister, by written determination, under s 23A(1). Section 23A(7) provides that a determination made under s 23A(1) "is not a legislative instrument".

Consideration 31 For the reasons which follow, the direction of the Tribunal should be stayed pending determination of the Minister's appeal. The matters of particular significance in reaching this conclusion are: (1) first, there is still utility in granting the stay, notwithstanding that the application was brought after the time for compliance with the direction had passed; (2) secondly, the ground of appeal is reasonably arguable; (3) thirdly, the appeal might be rendered nugatory if the stay is not ordered; (4) fourthly, the balance of convenience and the consideration of the rights of the parties if a stay is granted favour the granting of a stay, noting that the prejudice to Mr Zadeh has been mitigated to a satisfactory level in all of the circumstances by the undertakings given by the Minister (referred to below); (5) finally, considerations against granting a stay do not outweigh those which favour granting the stay.

Utility 32 As to the first matter, the Tribunal's direction that the Minister offer another test is still operative notwithstanding that the Minister failed to comply with it in the time stipulated. Without a stay, the continuing failure to offer another test is a continuing failure to abide by the terms of the Tribunal's direction. 33 Further, the Tribunal's direction is still operative because it stated, in terms analogous to declaratory relief, that Mr Zadeh was entitled to sit for the test again in accordance with paragraph 17 of the Ministerial Determination, if he failed the one which should have been offered within a month. 34 Therefore, there is utility in ordering a stay.

Prospects of the appeal 35 As to the second matter, the notice of appeal pleads a single ground in the following terms: The Tribunal erred in construing the Determination, and giving a direction consistent with this construction, such that paragraph 17 of the Determination prevents a decision-maker from making a determination under s 24 of the Act until an applicant has taken the 'Standard Test' as many times as the applicant wishes. That construction is inconsistent with, and stultifies, the scheme of the Act, which provides that applications made under s 21(1) of the Act must be determined under s 24 of the Act. The Tribunal ought to have construed the Determination such that it is within the discretion of a decision-maker to decide when to bring the application to a determination. 36 The Minister's case is outlined in his written submissions as follows: 10. … [Section] 24 of the Act contemplates that, following the lodging of an application for citizenship, the Minister or a delegate will consider the application. The choice contemplated by s 24 is binary - either the application is approved or it is refused. The Minister must not approve the application if the citizenship applicant does not satisfy the prescribed criteria: s 24(1A). 11. Contrary to this scheme, … [the] Tribunal has interpreted paragraph 17 of the Determination to mean that the time for sitting the test is at large, and that the decision-maker cannot make a decision until the applicant has exercised a 'right' to take the test as many times as he or she wishes: at [8], [9]. This construction is confirmed by the direction at [11]. It is submitted that this aspect of the Tribunal's reasoning is in error in its construction of the Determination. The Direction must be read consistently with the Act under which it was made. The Act contemplates a process where an application must fall to be considered and may be refused. The Tribunal's determination thwarts that statutory process because it removes from the decision-maker the power to move to a decision. 37 The appeal is certainly arguable. On one view, the direction given by the Tribunal has the effect of requiring the Minister not to determine Mr Zadeh's citizenship application whilst ever he requests to sit another test. This has the theoretical, if not practical, consequence that Mr Zadeh's application might never be determined. 38 The Minister contended that the Tribunal's construction of paragraph 17 of the Ministerial Determination is inconsistent with the statutory scheme which requires the Minister to approve or refuse an application: s 24 of the Citizenship Act. 39 The Minister also contended that the construction of paragraph 17 is wrong even without regard to the statute under which the Ministerial Determination was made. In substance, the Minister said that paragraph 17 is permissive in the sense that the Minister may allow a person to sit a test as many times as he wishes. Paragraph 17 does not, however, go further than that by requiring that the Minister must permit every citizenship applicant to sit as many tests as the particular applicant might wish. This construction not only has the appeal of common sense but finds arguable support when paragraph 17 is construed in the context of the whole of the Ministerial Determination. 40 For the purposes of this interlocutory application, it is unnecessary to set out in detail the Minister's argument in relation to the construction of paragraph 17 in the context of the Ministerial Determination as a whole. In brief, however, paragraph 18 states that a person may not re-sit the "Standard Test" if the person has commenced a "Course-Based Test". The eligibility criteria for a "Course-Based Test" are contained in paragraph 36 and include failing the "Standard Test" or "Assisted Test", or a combination of them, three or more times. Paragraph 48 provides: Except in exceptional circumstances, a person may only undertake the Course-Based Test once per each application for citizenship. A claim of "exceptional circumstances" must be supported by evidence and will be decided by an officer of the Department. 41 The Minister's submission is that the scheme provided by the Ministerial Determination suggests the better construction of paragraph 17 is that the Minister has a discretion to allow a person to sit the Standard Test as many times as the Minister wishes (except if the person has commenced a "Course-Based Test"), but is not prevented from refusing an application in accordance s 24(1) simply because an applicant has asked to re-sit the "Standard Test". 42 The fact that the appeal has arguable merit weighs in favour of granting the stay.

Appeal would be rendered nugatory 43 As to the third matter, the appeal would arguably be rendered nugatory if Mr Zadeh accepts the Department's offer (which he has) and sits the test on 25 September 2018, and passes that test. This weighs in favour of granting the stay.

Balance of convenience and prejudice to rights 44 As to the fourth matter, the Minister indicated in oral submissions that the requirements for the conferral of citizenship had changed in two ways: first, from 1 July 2018 the residency requirement for eligibility for Australian citizenship was changed from two years to four years. Secondly, the testing requirements have changed (and conceivably the test may be more difficult). The first matter presented no difficulty to Mr Zadeh as he would satisfy the length of residency required. The second matter might present a difficulty. 45 If the Minister's appeal is unsuccessful, the respondent will be able to sit the test again. In this scenario, if a stay is granted, there is little prejudice. The only real prejudice is missing the test currently scheduled for 25 September 2018. That prejudice is offset by the benefit of perhaps using the time to prepare for the next test. 46 If the appeal is successful, and the stay is granted, the prejudice to Mr Zadeh is that he may not get the opportunity to sit another test under his current application. Of course, he may get that opportunity if, on remitter, the Tribunal sees fit when conducting its merits review (standing in the shoes of the Minister) to adjourn the proceedings to facilitate Mr Zadeh sitting the test again. However, there is no requirement that the Tribunal adopt that course, nor any certainty that it would. 47 Mr Zadeh made submissions, essentially accepted by the Minister, that if he had to reapply to sit the test, he would lose his priority position and it might be a couple of years before he would be able to sit the test again. He would also be required to pay a new application fee of $285. The Minister said there was no power to waive the application fee. 48 To mitigate the prejudice to Mr Zadeh, the Minister undertook that, should the appeal be successful, he would seek an order that the proceedings be remitted to the Tribunal to be determined according to law and, on any such remittal, he would consent to an adjournment of the Tribunal hearing for an appropriate period of time to allow Mr Zadeh to re-sit the test under his current citizenship application before the Tribunal determined the application. This goes a substantial way to alleviating the prejudice which arises from granting the stay, with the consequence, indicated by the Minister, that he will revoke the invitation to sit the test on 25 September 2018. 49 The Minister's evidence as to the inconvenience to third parties is unpersuasive. At its highest it indicates that if Mr Zadeh accepts the Department's offer and sits the test in October or November, one other applicant will have to wait until the next test period to sit the test. I do not give this factor significant weight.

Matters against granting a stay 50 There are matters which weigh against granting a stay. However, these matters do not outweigh the considerations which favour granting a stay. (1) The Minister did not comply with the Tribunal's direction that the applicant was to be offered his next test in a month's time after the decision (a direction capable of different interpretations, but not complied with on any available interpretation). The decision was made on 11 July 2018; the offer to sit another test was made on 28 August 2018. (2) The Minister did not file an interlocutory application for a stay before 11 August 2018, although the fact that a stay would be sought as an interlocutory order was stated in the notice of appeal filed on 7 August 2018. It would have been preferable for steps to have been taken to file an interlocutory application and to have the matter dealt with on an urgent basis before 11 August 2018, with an affidavit filed indicating precisely how the urgency arose. The delay in filing the affidavit with respect to urgency once this was suggested by the Court is also a factor militating against the grant of relief.

Conclusion 51 For the reasons outlined above, and on the basis of the Minister's undertakings, it is appropriate to make an order staying the direction of the Tribunal pending judgment in the appeal. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley.