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[2011] FCA 685
Federal Court of Australia
2011-06-17
Mr J, Marshall J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 The applicant appeals, pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), from a decision of the Administrative Appeals Tribunal ("the Tribunal"). The Tribunal dismissed the applicant's application to review the decision of a delegate of the respondent Minister to refuse his application for Australian citizenship. 2 There is one question of law raised on the appeal. It is whether the Tribunal erred in applying policy which was ultra vires and inconsistent with the Australian Citizenship Act 2007 (Cth) ("the Act").
Factual background 3 The applicant is a young child, who was born in Australia in March 2006. His parents are Indian citizens who remain in Australia as the holders of bridging visas. The applicant and his parents have resided in Griffith, New South Wales, since his birth. Should the applicant be granted Australian citizenship, but his parents be required to depart Australia, his parents will leave him with friends who reside in Berri, South Australia. The applicant suffers from asthma and eczema. Although the conditions are now stable they may be exacerbated by a humid climate, such as that in India or in the Philippines where his parents have previously resided.
The Tribunal 4 The Tribunal set out the relevant legislation which applied to the application before it. First, it referred to s 21(5) of the Act which provided: A person is eligible to become an Australian citizen if the Minister is satisfied that the person is aged under 18 at the time the person made the application. 5 Next, the Tribunal set out the terms of s 24 of the Act, which provided: (1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen. (1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8). (2) The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8). 6 The legislative scheme was that an applicant for citizenship who was under 18 years old was eligible to become an Australian citizen but the Minister retained a discretion to refuse to approve the person becoming a citizen, notwithstanding the person's eligibility to apply. 7 The Tribunal then referred to the fact that the Minister had issued policy guidelines in relation to citizenship applications called the Australian Citizenship Instructions ("the Instructions"). At paragraph [7] of its reasons, the Tribunal said: Chapter 5 of the Australian Citizenship Instructions (the guidelines) provides guidance relating to Citizenship by Conferral in s 21 of the Act. The Tribunal is required to have regard to the guidelines unless there are cogent reasons for not doing so (Drake v Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634). The Tribunal finds it is appropriate to have regard to those guidelines.
The applicant's contentions 8 The applicant challenges the Tribunal's finding that it was appropriate for it to have regard to the Instructions. His counsel, Mr Gibson, submits that those parts of the Instructions which give primacy to permanent resident status with respect to applicants under 18 years of age are inconsistent with the Act. Mr Gibson referred to s 13(9)(a) of the Australian Citizenship Act 1948 (Cth) ("the 1948 Act"). That provision gave the Minister a discretion to grant citizenship to a person under 18 years of age. He contrasted s 13(9)(a) with s 13(1) which applied to persons over 18 years of age and was conditional on an applicant being a permanent resident. Mr Gibson said that s 21(5) of the Act is based on s 13(9) of the 1948 Act. Mr Gibson next referred to the explanatory memorandum which accompanied the Australian Citizenship Bill 2005 (Cth), which led to the insertion of s 21(5) into the Act. 9 It is instructive to set out the full text of what appeared under the heading "Person aged under 18". It was as follows: Proposed subsection (5) [now subclause 21(5)] outlines the eligibility provisions for citizenship where a person is aged under 18 years. It specifies that a person is eligible to become an Australian citizen if the Minister is satisfied that the person is aged under 18 at the time the person made the application. This new subsection is the equivalent of Section 13(9)(a) of the old Act. As a matter of policy, applications considered under this subsection would usually be approved if the applicant meets the criteria in subsection 2. That is, the applicant is a permanent resident, satisfies the residence requirements, has a basic knowledge of English, the privileges and responsibilities of citizenship, the nature of the application and 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 is of good character. In addition, application under this subsection would not usually be approved unless the applicant has a responsible parent (as defined by section 6 of this Act) who is an Australian citizen. 10 Mr Gibson also referred to the 1984 second reading speech concerning the Bill which introduced s 13(9) into the 1948 Act. The relevant part of the speech was: Existing ministerial discretion to grant citizenship notwithstanding the requirements of sub-section 13(1) is retained in sub-section 13(9). The most important of these are powers to grant citizenship to a spouse, widow or widower of an Australian citizen, and to persons under the age of 18 years. 11 Mr Gibson submits that s 21(5) does not set out legislative criteria for the making of a decision to confer citizenship on a person aged under 18. He contends that the Minister is able to take into account all the circumstances of the case and not be bound by the consideration of permanent residence. Mr Gibson noted that s 21(2), (3) and (4) of the Act all refer to permanent residency but s 21(5) does not. Mr Gibson submits that there was no intention in Parliament to make permanent residence a determinative factor for application under s 21(5).
Proper construction 12 Reading s 21(5) together with s 24(2) and informed by the explanatory memorandum that accompanied the relevant Bill, the Court considers that the following is the correct approach to applications by persons under 18 years of age for Australian citizenship, in respect of the legislation which applied at the relevant time: a person under 18 years of age is eligible to apply for citizenship (s 21(5)); notwithstanding such eligibility, the Minister may refuse to approve such an application (s 24(2)); the discretion (unfettered under the Act) must be exercised by reference to matters to be implied from the subject matter, scope and purpose of the statutory provisions, with a view to reaching the correct or preferable decision in all the circumstances (Hneidi v Minister for Immigration (2010) 182 FCR 115 at paragraph [34] to [35] and Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at page 419 - 420); the discretion contained in s 13(9)(a) of the 1948 Act was subject to "ministerial discretion" (see the 1984 second reading speech referred to at paragraph [10] above); policy considerations governing the exercise of the discretion contained in s 21(5) were at the forefront of Parliament's intention in enacting s 21(5) (see the reference to the 2005 explanatory memorandum at paragraph [9] above); policy considerations referred to in the 2005 explanatory memorandum were not intended to govern the exercise of the discretion but to set out circumstances when applications would "usually be approved", thereby leaving the appropriate decision to the decision maker. The Instructions are not intended to dictate how the discretion under s 24(2) is exercised (Budilay v Minister for Immigration and Citizenship [2011] FCA 508 at paragraph [11], per Buchanan J); the Instructions constitute a statement of departmental policy to which an administrative decision maker is entitled to have regard (Hneidi at paragraph [40] to [45]); as the Instructions set out policy considerations which the explanatory memorandum suggested were appropriate considerations, being considerations which do not dictate how the discretion is to be exercised but provide guidance in its exercise, they may be properly considered in the exercise of the s 24(2) discretion. They are not ultra vires. They do not impermissibly raise, as a usual course, the prior attainment of permanent residence. That factor is expressly contemplated by the explanatory memorandum as a policy matter which may be reflected in guidelines to inform relevant administrative decision making.
Answer to the question of law raised 13 The answer to the question of law raised on the appeal is that the Tribunal did not err in applying policy contained in the Instructions. The Tribunal properly had regard to the Instructions as guidelines. In addition it considered "the best interests of the child", having regard to the Convention on the Rights of the Child. It noted at paragraph [40] that the usual criterion of permanent residence was absent but went on to consider, under the Instructions, whether the discretion should still be exercised favourably to the applicant having regard to circumstances personal to the applicant.
Order 14 Having regard to the foregoing the Court will order as follows: 1. The application is dismissed. 2. The applicant pay the respondent's costs of the proceeding, including reserved costs, to be taxed in default of agreement. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.
Singh
Minister for Immigration and Citizenship