Singh v Minister for Immigration and Citizenship [2012] FCAFC 12 | Case summary

Singh v Minister for Immigration and Citizenship [2012] FCAFC 12 | Case summary | Zoe

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FACTUAL BACKGROUND 2 The appellant is an Indian citizen, born in Australia on 14 March 2006. His parents (the "Parents") are also Indian citizens. In October 2005, they arrived in Australia holding Visitor Visas. Those visas allowed them to remain in Australia for three months. In November 2005, the Parents applied for Protection Visas. They were granted Bridging Visas (Class A) pending the determination of their applications. As the appellant was born in Australia, he was deemed also to hold a Bridging Visa (Class A). The family continued to reside in Australia on the basis of these Bridging Visas, pending determination of the applications for Protection Visas. Those applications have now been rejected by the Minister. That decision was affirmed by the Refugee Review Tribunal. The Federal Magistrates' Court and this Court have affirmed the decision of the Refugee Review Tribunal. The Parents are no longer entitled to remain in Australia. 3 The Parents have another child, a daughter, who lives with her paternal grandparents in India. She attends a private school there; the Parents apparently bearing the associated expense. They fear that if they return to India with the appellant, they may not be able to afford to educate both children to standards which they deem necessary for success in life. The Parents have lived in the Philippines. They do not wish to return there. They fear kidnapping and other criminal activity. The appellant suffers from eczema and asthma. The Parents fear that these conditions will be aggravated by the high levels of pollution and humidity in both India and the Philippines. They claim that the appellant's interests will be best served by his remaining in Australia, even if he is separated from them. For this reason they caused application to be made, on the appellant's behalf, for Australian citizenship. 4 The Parents propose that, should the appellant be granted Australian citizenship, he live with their close friends, Manjit Singh and his wife, in Berri, South Australia. Manjit Singh is a foster brother of the appellant's paternal grandfather. He and his wife have a farm which the Parents and the appellant visit four times a year. The appellant is happy on the farm, but he has never visited without the Parents. Manjit Singh says that he has met the appellant on four occasions (AAT Reasons, para 21). However he also says that they meet four or five times a year (AAT Reasons, para 23). 5 Dr Marian Reeves has, since the appellant's birth, been his general practitioner. She considers that his eczema and asthma are presently well controlled with medication. The climate at Griffith (where the appellant lives) is favourable. Dr Reeves considers that a more humid and polluted environment would be detrimental to the appellant's health. Should he relocate to an area having a different climate, she would recommend preventative medication and re-evaluation. His eczema and asthma may dissipate as he grows. 6 Michael Kruger-Davis is a psychologist. He has seen the appellant once for the purpose of assessing him. He considers that the Parents are "well adjusted and loving" and that the appellant is "developing with normal and age-appropriate functioning". Mr Kruger-Davis expresses no view as to whether the appellant's interests would be better served by his living with the Parents outside of Australia or remaining in Australia without them.

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THE ACT 7 At the relevant time, s 2A of the Act provided a simplified overview of its operation. Relevantly, it identified four mechanisms for acquiring Australian citizenship, namely: automatic; by application; by conferral; and by resumption. 8 It is common ground that the appellant's application was for conferral of citizenship pursuant to subdiv 2B of Part 2 of the Act. Concerning such applications, s 2A stated: … Generally, you would need to be a permanent resident and willing to make a pledge of commitment to apply for citizenship by conferral. You may need to successfully complete a citizenship test. There are some less common circumstances in which you can apply for citizenship by conferral. Citizenship by conferral is covered by Subdivision B. 9 The requirements for a pledge and/or a citizenship test did not apply to a person aged under 16 years. See s 26. 10 Relevantly, s 21(1) provided: A person may make an application to the Minister to become an Australian citizen. 11 Subsections (2) to (8) then identified persons who were eligible to become Australian citizens pursuant to such an application. Subsections 21(2), (3) and (4) all required that the person be a permanent resident of Australia, that term being defined in s 5. The appellant applied pursuant to subs 21(5) which, at the relevant time, 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. 12 Subsections 21(6), (7) and (8) dealt with other, quite specific situations, none of which was subject to a residential requirement, but all of which required some Australian connection. 13 When an application was made pursuant to s 21, s 24(1) required the Minister to either "approve or refuse to approve the person becoming an Australian citizen". Subsection 24(1A) provided that the Minister must not approve a person becoming an Australian citizen unless such person was eligible pursuant to subss 21(2), (3), (4), (5), (6), (7) or (8). Subsection (2) provided: 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). 14 Subsections 24(3) to 24(8) dealt with situations in which the Minister "must not approve the person becoming an Australian citizen". Subsection 24(5) prohibited the Minister from approving a person becoming an Australian citizen if he or she was "covered by subsections 21(2), (3) or (4) …" and was not present in Australia. Thus it seems that an applicant "covered" by subs 21(5) might have been granted citizenship whilst he or she was outside of Australia. 15 Pursuant to s 46(2A): An application under a provision of this Act by a child aged under 16 must be set out: (a) on a form that contains no other application; or (b) on a form that also contains an application by one responsible parent of the child. 16 The term "responsible parent" was defined in s 6. It excluded a parent who, pursuant to an order under the Family Law Act 1975 (Cth), no longer had any parental responsibility for the child. It included non-parents having responsibility for the child pursuant to orders made under that act or otherwise in accordance with law. 17 The purpose of s 46(2A) seems to have been to ensure that any application was made with the authority of a responsible parent. In the event that the application related only to an application by a child under 16, the prescribed form required the signature of such a person. The appellant's application form was so signed. 18 The Minister established policies for dealing with applications pursuant to s 21(5). The policies were contained in a document described as "Australian Citizenship Instructions 2007" (the "Instructions"). At the relevant time, Ch 5 of the Instructions provided as follows: A child aged under 16 years can make an individual application in their own right (by applying on a form that contains no other application) or on the same form and at the same time as a responsible parent. This is set out in subsection 46(2A) of the Act. Children under the age of 16 applying individually in their own right would usually be approved if they: • hold a permanent visa, including an adoption visa; and • are under 16 years of age when applying, are living with a responsible parent, who is an Australian citizen and consents to the application; or • are under 16 years of age when applying and living with a responsible parent, who is not an Australian citizen and consents to the application, and the child would otherwise suffer significant hardship or disadvantage (refer to Attachment B for definition), or • are under 16 years of age when applying, and in the care of another person, such as a relative who consents to the application, and the child would otherwise suffer significant hardship or disadvantage; or • are an unaccompanied humanitarian minor who is a ward of the Minister and the Minister's delegate has consented to the application (see Wards of the Minister in this chapter). Consent for applications by children under the age of 16 years with no responsible parent should be signed by a person who has the daily care and control of the child. The person may not be a relative but is someone who is accepted as the guardian of the child by other government agencies such as DOCS and Centrelink. The application should be supported by evidence that the government agency recognizes the person as having daily care and control of the child. These children cannot be added to that person's application. 19 We pause at this point to observe that the requirement for a permanent visa reflected the statement in s 2A that generally, an applicant would be expected to be a permanent resident. We also observe that the last paragraph seems to have taken a wider view of the circumstances in which an application might be made on behalf of a child than that contemplated by s 46(2A). We infer that the Minister considered that the broad effect of s 21(5) was not to be read down by reference to the procedural provisions contained in s 46. The policy continued: Other requirements which must be satisfied relating to identity, national security, offences and former citizens are set out in the section on Minister's Decision (section 24). In the case of an applicant who does not meet the policy requirements above, decision-makers must consider the full circumstances of the case to determine whether the application nevertheless warrants approval because of the exceptional nature of those circumstances. The circumstances would need to be very unusual to warrant approval of an application outside policy. 20 In Attachment B to Ch 5, the terms "significant hardship" and "disadvantage" were defined as follows: Definitions according to the Macquarie Concise Dictionary and the Collins Concise Dictionary, Australia Edition: "significant" of consequence; important or momentous "hardship" conditions of life difficult to endure; something that causes suffering or privation "disadvantage" an unfavourable circumstance. Thing, person; injury, loss or detriment. People would normally be required to demonstrate some or all of the following circumstances: • inability to gain employment on the grounds that the employment is restricted to Australian citizens, and that comparable or alternative employment is not reasonably available; • difficulty of international travel because the person cannot obtain a passport from their country of nationality/citizenship, or are unable to use a passport issued by that country for safety or similar reasons; • academic (eg research, academic scholarship) or other (sporting etc) potential is being limited or restricted, because the opportunities to reach that potential is [sic] available only to an Australian citizen, to the extent that it causes significant hardship. Decision-makers will need to assess each application on its merits. While policy is not to be applied inflexibly, it must be applied, unless there are special circumstances that would warrant consideration outside that policy. Evidence of significant hardship and disadvantage is required eg a statement in writing, with appropriate supporting documentation to demonstrate how they meet the legal and policy requirement. The onus is on the applicant to provide the evidence to support the application. Decision-makers must be mindful of the difference between personal needs and personal wants. Personal needs relates to situations which would give rise to significant hardship or disadvantage if a person could not meet that need. For example, if a person could not find any employment, and was unable to adequately financially support themselves or their family. Personal wants are aspirations and generally do not constitute hardship ie the right to vote, election to parliament, HECS availability, representing Australia internationally in academics or sport. Australian citizenship is not a requirement to study in Australia. Australian universities are permitted to admit students who are not Australian citizens. Permanent visa holders are eligible for a Commonwealth supported place (previously known as a Higher Education Contribution Scheme) or a domestic fee paying place. The requirement to be an Australian citizen is only relevant to students who wish to access a loan under the Australian government's Higher Education Loan Program (HELP) for their student contribution or tuition fees. Further information is available from the Department of Education, Science and Training at www.dest.gov.au. Decision-makers should also be aware of situations where it appears that a person takes a course of action for the sole purpose of availing themselves of the exercise of this discretion.

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THE TRIBUNAL'S DECISION 21 In its reasons the Tribunal noted that the Act had been amended since the date of the appellant's application. Applicants under the age of 18 years must now satisfy a residential requirement. The Instructions have also been amended. The Tribunal noted that it was appropriate to have regard to the Instructions as in force at the time of the application. The parties agreed that it was also appropriate that the Tribunal consider the appellant's best interests in accordance with the United Nations Convention on the Rights of the Child. The Tribunal then set out the appellant's circumstances. 22 The appellant's counsel conceded that as a general rule, it was best for a child to stay with his or her parents but submitted that, in certain situations, the best interests of the child might require separation. He referred to the fact that the appellant was born in Australia and had lived here ever since. He also referred to his health problems. Although they were not life-threatening they would, nonetheless, have an impact upon him. The Parents believed that it was best for the appellant that he remain in Australia when they return to India. Counsel submitted that in the Philippines he might become a victim of crime, possibly kidnapping, and that in India or the Philippines, his health might be adversely affected. He also pointed out that the appellant had developed friendships in Australia which would be affected if he were unable to stay in this country, and that, if the appellant left Australia with the Parents, their distress might upset him. 23 Counsel submitted that the statement in the Instructions, that departure from policy was permitted only in exceptional or very unusual circumstances, constituted an improper attempt to preclude consideration of the unique features and merits of the application. He conceded that the appellant could not demonstrate that he would suffer significant hardship or disadvantage if he were not granted citizenship. However he submitted that the appellant's situation was unusual, and that, in the long term, his educational, employment and other opportunities and general welfare were likely to be enhanced if he remained in Australia. The reference to significant hardship or disadvantage was, in our view, irrelevant. Those considerations were relevant only to an applicant under 16 years of age who had a permanent visa, and was in the care of a responsible parent who was not an Australian citizen, or another non-citizen. 24 Counsel for the Minister submitted that the Instructions should be followed, and that relevant requirements had not been met, that the circumstances were not particularly unusual and that it would not be unjust to follow the policy. Counsel submitted that the relevant matters for consideration included the appellant's connection to Australia, his best interests and whether his situation was unusual. Counsel submitted that it was not in the appellant's best interests that he be separated from his parents, and that Manjit Singh and his wife had not previously undertaken primary responsibility for his care. There was no evidence that the appellant would be unable to attend school in India or the Philippines, or that he would be denied the opportunity to learn English in either country. There was no independent evidence that the quality of teaching in India was worse than that in Australia. There was minimal evidence that the appellant's health would deteriorate if he left Australia. 25 Having summarized the arguments of counsel, the Tribunal gave its reasons at paras 40-46. In para 40 it observed that: The guidelines set out the circumstances in which a person under 16 years of age who applies for citizenship would usually be approved. The usual criteria include permanent residence for a defined period of time. [The appellant] has not held a permanent visa so he can only be considered under the policy guidelines. 26 This statement is a little confusing. The reference to the "usual criteria" including a defined period of residence may have reflected the language of s 21(2). However that subsection did not apply to applicants under 18 years of age. The reference to the absence of a visa suggests that the Tribunal may have been referring to that part of the Instructions which dealt with a permanent visa holder who also satisfied one of the other requirements as to residence, care or wardship. The reference to the "policy guidelines" as the necessary basis for the application, given that the appellant did not hold a visa, may have been to the "exceptional" or "unusual" rider in the Instructions. In accordance with the Tribunal's usage, we will refer to the provisions in the Instructions relating to permanent visa holders as the "usual criteria for permanent visa-holders", and to the rider dealing with "exceptional" or "very unusual" circumstances as the "policy guidelines for non-visa-holders". 27 The Tribunal acknowledged that the appellant might suffer disadvantage if not granted citizenship, his opportunities being uncertain if he returned to India. There was also concern about his health. It then referred to the statement that the onus was on an applicant to provide evidence in support of his or her application and observed that there was only limited evidence as to any effect upon the appellant's health should he leave Australia. 28 The Tribunal noted that the appellant had always been cared for by his parents, that Manjit Singh and his wife had not taken on the primary role of carers, and that it was "unclear" how the appellant would react if his parents left him with them. There was no evidence that he would not get a good education in India or the Philippines, notwithstanding the Parents' preference for the Australian system. The Tribunal classified this view as a "personal want" rather than a "personal need", a distinction drawn in the definition of the terms "significant hardship" and "disadvantage" and not relevant to the policy guidelines concerning non-visa holders. The Tribunal noted that many children born in Australia were not entitled to remain here when their parents were required to leave. It also observed that a recent amendment closed "the limited opportunity that exists in this case", apparently a reference to a 2009 amendment which imposed a residential requirement upon applicants who are under 18 years of age. 29 The Tribunal was not satisfied that it would be in the appellant's best interests for him to be separated from his parents. It was not satisfied on the evidence that, in the event that he was not granted citizenship, he would be unable to obtain suitable medical treatment or be deprived of opportunities for education. There was no evidence that his parents would be unable to provide for him in another country. It therefore concluded that there was no evidence to demonstrate that his circumstances were of an exceptional nature. The Tribunal was therefore not satisfied that it should grant citizenship, "outside relevant policy".

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THE APPEAL PURSUANT TO S 44 OF THE AAT ACT 30 The appellant appealed pursuant to s 44 of the AAT Act. The questions of law were said to be: (a) Was the Tribunal bound to follow policy guidelines (Australian Citizenship Instructions Chapter 5) in determining the application unless the applicant demonstrated his circumstances were of an exceptional nature? (b) Was the Tribunal permitted to have regard to subsequent amendments to the Australian Citizenship Act 2007 ("the Act") in determining the application? 31 The primary Judge noted that counsel for the appellant submitted 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. 32 His Honour referred to the explanatory memorandum accompanying the Australian Citizenship Bill 2005 (Cth) which included s 21(5). The original bill was amended in the course of its passage through the Parliament. 33 The memorandum which accompanied the original bill was amended or replaced to reflect amendments suggested by the Senate Legal and Constitutional Legislative Committee in its report dated 27 February 2006. References in these reasons are to the later version of the memorandum. The memorandum stated: 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 section 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. 34 As we have observed, s 2A of the Act provided that permanent residence would generally be necessary in order that an application pursuant to s 21 be successful. Counsel submitted that s 21(5) did not prescribe criteria for decision-making thereunder, and that the Minister was obliged to take account of all relevant circumstances, there being no parliamentary intention that permanent residence be a determinative factor. No reference was made to s 2A. We will return to the memorandum and s 2A at a later stage in these reasons. 35 His Honour concluded that the correct approach to applications by persons under 18 years of age was as follows: • 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]-[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 para [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. 36 His Honour then concluded that although the Tribunal had noted that the, "usual criterion of permanent residence was absent", it "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".

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THE PRESENT APPEAL 37 In the notice of appeal the appellant asserts that his Honour: … erred in law by concluding that the [Tribunal] properly had regard to government policy in considering the Appellant's application for citizenship because that policy was ultra vires and inconsistent with the Australian Citizenship Act 2007. 38 In other words, the only question for this Court is whether the policy was ultra vires by virtue of its being inconsistent with the Act. 39 At para 2 of the appellant's outline of submissions, it is submitted that: The policy is inconsistent with the Act in four respects, all of which were fundamental to the Tribunal's decision: (a) the primacy given to permanent residence as factor in granting an application for citizenship for a child; (b) the need to demonstrate that the circumstances are "exceptional" or "very unusual" to warrant approval of an application outside policy; (c) by approaching the discretion to be exercised under s 24 as one of "approval" of an application for citizenship rather than one of the "refusal to approve" a person who is otherwise entitled to citizenship; and (d) the (related) requirement that an applicant bears the onus of providing evidence to support the application. 40 At the commencement of oral argument in this Court, counsel for the appellant acknowledged that the ground in para 2(b) had been abandoned at first instance and indicated that he did not propose to pursue it. Counsel also conceded that the grounds raised in paras 2(c) and 2(d) were not raised "in terms" before the primary Judge. He submits, however, that point (c) was raised in the Tribunal, the submission being that the discretion to be exercised by the Tribunal was a discretion to refuse to approve rather than to approve. Counsel therefore sought leave to argue those points on the basis that they were really elements of the more general ground of appeal that the policy was inconsistent with the Act. The Minister opposed the grant of leave, asserting that neither point was raised in the Tribunal. The Minister submits that in those circumstances, the decision of this Court in Hussain v Minister for Foreign Affairs (2008) 169 FCR 241 establishes that those issues may not be raised on appeal. 41 In the Tribunal, the appellant submitted, at para 21 of his statement of facts and contentions, that the s 24 power was to refuse to approve citizenship. The submission was made in the context of an assertion that, "such discretion should not be exercised lightly". It may be that this submission was different from the submission now made that the Instructions reflected a misunderstanding of the nature of the power. However the distinction is a narrow one. At first instance on appeal, the primary Judge concluded that the appellant, "was eligible to become an Australian citizen but the Minister retained a discretion to refuse to approve the [appellant] becoming a citizen, notwithstanding [his] eligibility to apply", seemingly adopting the appellant's submission. 42 In challenging the validity of the Instructions, the appellant effectively raises a question as to their proper construction. Chapter 5 is quite short and must be construed as a whole. As the primary Judge concluded, the usual criteria for permanent visa holders identify circumstances in which the Minister's approval will generally be given. By themselves, such criteria are unobjectionable. Any mischief arises out of the requirement in the policy guidelines for non-visa holders which require that, in the case of an application not within those usual criteria, the "full circumstances" must have been of an "exceptional nature" or "very unusual". The appellant's complaint is that the Instructions effectively restricted the circumstances in which a non-permanent resident might successfully apply pursuant to s 21(5). Such restriction was the consequence of the requirement for "exceptional" or "very unusual circumstances". The appellant's case was, and is that the alleged misconception as to the nature of the s 24 power and the attempt to place the onus of proof on an applicant were elements of an attempt to restrict recourse by non-residents to s 21(5). In those circumstances the points raised in paras 2(c) and 2(d) of the appellant's outline are merely aspects of his broader submission as to inconsistency with the Act. The appellant should be permitted to rely on the matters raised in those paragraphs. However, for reasons which appear below, we consider that both points are misconceived.

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INCONSISTENCY 43 We turn to the question of whether the Instructions are inconsistent with the Act. In Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640-641, Brennan J, then President of the AAT, considered a similar question. Having noted the need for consistency in decision-making, his Honour continued: There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process. Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute … . The Minister must decide each of the cases … on its merit. His discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases. A fetter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative. A Minister's policy … must leave him free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the Minister will make in the circumstances of a given case. That is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the Minister usually applies. There is a distinction between an unlawful policy which creates a fetter purporting to limit the range of discretion conferred by a statute, and a lawful policy which leaves the range of discretion in tact while guiding the exercise of the power. … Lord Denning referred to the distinction in Signata Investments Ltd v Norwich Corporation (1971) 2 QB 614 at 626, where he said: I take it to be perfectly clear now that an administrative body, including a licensing body, which may have to consider numerous applications of a similar kind, is entitled to lay down a general policy which it proposes to follow in coming to its individual decisions, provided always that it is a reasonable policy which it is fair and just to apply. Once laid down, the administrative body is entitled to apply the policy in the individual cases which come before it. The only qualification is that the administrative body must not apply the policy so rigidly as to reject an applicant without hearing what he has to say. It must not "shut its ears to an application" … . The applicant is entitled to put forward reasons urging that the policy should be changed, or saying that in any case it should not be applied to him. But, so long as the administrative body is ready to hear him and consider what he has to say, it is entitled to apply its general policy to him as to others. Subject to these limits the Minister may arrive at his decisions by reference to a policy of his own devising. 44 As to the extent to which a decision-maker should apply such policy, Bowen CJ and Deane J said in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589-90: There are circumstances in which an administrative officer is precluded from taking into account the dictates of general government policy in the exercise of a power conferred upon him by virtue of his office. Examples can readily be found among cases where the particular officer is charged with the exercise of a power by reference to defined criteria or considerations … . Ordinarily, however, an administrative officer charged with the exercise of discretionary power will be entitled in the absence of specifically defined criteria or considerations, to take into account government policy. The propriety of paying regard to general policy considerations is most evident in a case such as the present where there are no specified statutory criteria for the exercise of the discretionary power and where the power is entrusted to a Minister of the Crown responsible to parliament. Clearly, in considering whether a deportation order should be made in respect of the plaintiff in the present matter, the Minister was entitled to be guided by any general relevant government policy which was not inconsistent with the provisions or the objects of the Migration Act. Indeed, the consistent exercise of discretionary administrative power in the absence of legislative guidelines will, in itself, almost inevitably lead to the formulation of some general policy or rules relating to the exercise of the relevant power. 45 Brennan J said, in Drake (No 2) at 642: It was submitted by counsel for the applicant that the statement of policy unlawfully fettered the exercise of the Minister's discretionary power, and exceeded the lawful limits of policy. The Minister's policy, as it appears in the letter and in the statement, does not go beyond the limits charted by the authorities. It merely identifies factors to which the Minister refers, and the kinds of conduct which he regards as more gravely affecting Australia's interests; it does not accord a determinative effect to any factor, or deny the ability of countervailing factors to lead the Minister in particular cases to decline to order deportation. The Minister thus maintains the discretionary power intact, specifying merely the weight which he ordinarily gives to convictions of the stated kind. It is perhaps possible to read the policy as though it were affected by a misconception of the relevant powers. The Minister's letter refers to his discretion "not to deport", expressing the power negatively where sections 12 and 13 confer the power in positive terms. But I take the Minister merely to be referring to the power conferred by the statute - a power either to deport or, reciprocally, not to deport in each case. I do not understand the Minister to conceive his power to be affected by a presumption either that deportation should be ordered or that it should not be ordered. There is no such presumption in the sections, and I do not construe the Minister's letter as suggesting that there is. Not only is it lawful for the Minister to form a guiding policy; its promulgation is desirable, for reasons stated above. Its promulgation is consistent with the view of the distinguished American writer on administrative law, Professor KC Davis, a view which has received judicial approval in the United States: When legislative bodies delegate discretionary power without meaningful standards, administrators should develop standards at the earliest feasible time, and then, as circumstances permit, should further confine their own discretion through principles and rules. (See Administrative Law Treatise, 2 nd ed, vol 2 para 8.8). That is a commendable approach. It is not a rule of law, but it is nonetheless valuable as a principle of discretionary decision-making. 46 Finally, his Honour observed: It is one thing for the Minister to apply his own policy in deciding cases; it is another thing for the Tribunal to apply it. In point of law, the Tribunal is as free as the Minister to apply or not to apply that policy. The Tribunal's duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function. In fulfilling its function the Tribunal, being independent of the Minister, is free to adopt reasoning entirely different from the reasoning which led to the making of the decision under review. But it is not bound to do so. Of course, the Tribunal would be in error to apply an unlawful Ministerial policy to cases it decides, for an application of unlawful policy vitiates the consequential decision. That problem does not arise in the present case. If the Tribunal applies ministerial policy, it is because of the assistance which the policy can furnish in arriving at the preferable decision in the circumstances of the case as they appear at the Tribunal. One of the factors to be considered in arriving at the preferable decision in a particular case is its consistency with other decisions and comparable cases, and one of the most useful aids in achieving consistency is a guiding policy. An appropriate guiding policy should thus be applied, … .

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Nature of the Minister's Power 47 The appellant submits that the Tribunal misunderstood the function prescribed by s 24 which, he submits, was to consider whether to "refuse to approve" an application by a person who was "otherwise entitled to citizenship". This alleged error is said to have led the Tribunal wrongly to adopt the Instructions, including the imposition of an onus on the appellant to produce evidence in support of the application. The decision of Spender J in Ross v Minister for Immigration and Multicultural Affairs (2000) 107 FCR 1 is said to support the appellant's submission as to the nature of the s 24 power. The Court was there concerned with s 501(2) of the Migration Act 1958 (Cth) which provided: The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test. 48 The Minister's decision concerning Ms Ross's visa was as follows: Ms Ross does not pass the character test under section 501. Ms Ross is unable to satisfy me that she passes the character test. I do not exercise my discretion to not cancel the visa. Ms Ross's visa should be cancelled. 49 At [19] Spender J observed: It is accepted by the applicant that s 501(2) confers a discretion in the Minister to cancel the visa. However, the decision that the Minister in fact made, being the decision that he said he made, namely "I do not exercise my discretion to not cancel the visa", does not, either as a matter of language and logic, or as a matter of fact, amount to a decision to cancel Ms Ross's visa. 50 At [27] his Honour observed that the statement, "I do not exercise my discretion to not cancel the visa" demonstrated: … that he wrongly interpreted s 501(2) as conferring a discretion to not cancel the visa. That was an error of law … . It is apparent that the Minister believed that once paras (a) and (b) of s 501(2) were satisfied he was obliged to cancel the visa unless he positively decided that he should not do so. 51 At [29] his Honour observed: The basis for my conclusion in this case is simply stated: I do not agree with the contention for the Minister that a discretion not to cancel a visa is the same as a discretion to cancel a visa. In terms, s 501(2) is permissive: it confers a power to cancel a visa in the exercise of the Minister's discretion. The interpretation given to the section by the Minister, as evidenced by the explanations proffered to him by his officers and by what he said he decided, is that the section obliges him to cancel a visa unless he is satisfied that he should not. 52 The appellant submits that by parity of reasoning, the Instructions wrongly treated the s 24 power as being to grant citizenship when, in fact, the proper question was whether or not citizenship should be refused. Thus, it is submitted, the Instructions were inconsistent with the Act. 53 The nature of the function prescribed by s 24 must be found in the proper construction of that section in the context of the Act as a whole. We note that in Budilay v Minister for Immigration and Citizenship (2011) 194 FCR 133 at [7], Buchanan J observed, concerning s 24 that: It is common ground that by the terms and operation of s 24, where there was no direction that an application not be approved, the Minister had a discretion whether to approve the application or not. 54 Counsel for the appellant submits that this observation was not the subject of any argument or detailed consideration by the Court. Whether or not that be so, we are of the view that his Honour correctly construed s 24. First, the appellant's assumption that he had an "entitlement" to citizenship is incorrect. Section s 21(5) provided only that a person under the age of 18 years was "eligible" to become an Australian citizen, not entitled to that status. We note also that, pursuant to s 20: 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; … 55 In other words, the Act itself treated the entitlement to citizenship as being dependent upon a favourable exercise of the power conferred by s 24. Further, the word "must" was frequently used in Div 2 where it was intended that the Minister act in a particular way. See s 17(2), providing that approval "must" be given in the absence of disqualifying factors, and the subsequent subsections which provided that the Minister "must not" give approval. See also subss 24(1), (3) et seq. There were many other examples. There was no express requirement that the Minister "must" approve an application pursuant to s 21. Section 24(1) provided that the Minister must either approve or refuse to approve a person's application for citizenship. Subsection 24(1A) provided that the Minister must not approve an application in certain circumstances. Subsection 24(2) provided that the Minister "may" refuse to approve such an application. 56 The appellant places great emphasis upon s 24(2). Such an approach places no weight upon the clear alternatives offered in s 24(1). Other, broader considerations, discussed below in connection with the matter raised in para 2(a) of the appellant's outline, also militate against this approach. Brennan J said in Drake (No 2) at 642, concerning the relevant provision in that case, that the power was "either to deport or, reciprocally, not to deport". The s 24 power should be similarly construed. We consider that s 24 conferred power upon the Minister to approve or disapprove, without any presumption for or against either alternative. Section 24(2) simply made it clear that entitlement to make an application did not imply entitlement to approval.

[14]

Permanent Residence 58 The terms "permanent resident" and "permanent visa holder" were used interchangeably in argument. Counsel submits that the Instructions were inconsistent with the Act in that they gave primacy to permanent residence as a factor in granting an application for citizenship. The Instructions did not state, in terms, that a person must, or should usually be a permanent resident in order to obtain citizenship. They rather provided that an applicant would usually be granted citizenship if he or she satisfied that requirement and one or other of the four alternatives which followed in the usual criteria for permanent visa holders. The appellant's real complaint is that the Instructions indicated that a person who did not satisfy such criteria would only be granted citizenship in "exceptional" or "very unusual" circumstances. 59 Nothing in the Act required that an applicant pursuant to s 21(5) be in Australia at the time of application or approval. Hence the appellant's submission necessarily implies that pursuant to s 24, anybody under the age of 18 years, located anywhere in the world, was entitled to make an application pursuant to s 21(5) and have it considered. It seems unlikely that Parliament intended to create such a wide class of eligible applicants. It is therefore necessary to examine the Act to determine whether it, expressly or impliedly, offered guidance to the Minister in exercising the power conferred by s 24. See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 162-163. The preamble to the Act stated: The Parliament recognizes 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, uniting all Australians, while respecting their diversity. The Parliament recognizes that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations: (a) by pledging loyalty to Australia and its people; and (b) by sharing their democratic belief; and (c) by respecting their rights and liberties; and (d) by upholding and obeying the laws of Australia. 60 Historically, there has been uncertainty as to the use of a preamble in construing legislation. In Bowtell v Goldsborough, Mort & Co Ltd (1906) 3 CLR 444 at 451, Griffith CJ said: … where the words of a Statute are plain and clear, their meaning cannot be cut down by reference to the preamble. But, if the words are uncertain as applied to the subject matter, and may bear more than one meaning, then you may in a proper case, refer to the preamble to ascertain what was the occasion for the alteration of the law. 61 Gibbs CJ endorsed this approach in Wacando v The Commonwealth (1981) 148 CLR 1 at 15-16. Mason J (as his Honour then was) appeared to have taken a somewhat broader view at 23, saying: It has been said that where the enacting part of a statute is clear and unambiguous it cannot be cut down by the preamble. But this does not mean that a court cannot obtain assistance from the preamble in ascertaining the meaning of an operative provision. The particular section must be seen in its context; the statute must be read as a whole and recourse to the preamble may throw light on the statutory purpose and object. There is, however, one difficulty in seeking to restrict the generality of the operative provision by reference to a suggested restriction expressed in the preamble: it is that Parliament may intend to enact a provision which extends beyond the actual problem sought to be remedied. 62 Wacando was argued in May 1981. Judgment was delivered on 12 November 1981. On 12 June 1981, the Statute Law Revision Act 1981 (Cth) received Royal Assent. It inserted s 15AA into the Acts Interpretation Act 1901 (Cth) (the "Acts Interpretation Act"). Subsection 15AA(1) then provided: In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object. 63 The Acts Interpretation Amendment Act 2011 (Cth) replaced s 15AA(1) with a new s 15AA, but the changes were purely stylistic. With effect from 27 December 2011, s 15AA provides: In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation. 64 If, from the Act as a whole, including the preamble, it is possible to infer a purpose or object, then that purpose or object should guide the construction of the Act. It may be that the enactment of s 15AA made it appropriate, in construing a statute, to consider the preamble in circumstances other than those suggested in Bowtell. In any event, the more liberal approach to statutory construction adopted by the High Court in CIC Insurance Ltd v Bankstown Football Club Ltd (1995-1997) 187 CLR 384 at 408, leads to a similar outcome. The majority (Brennan CJ, Dawson, Toohey and Gummow JJ) said: It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the Court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out …, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent. 65 See also the discussion of use of the preamble in DC Pearce and RS Geddes, Statutory Interpretation Australia, (7th ed, LexisNexis, Butterworths, Sydney, 2011) at 4.48 and the informative article referred to therein, A Winckel, The Contextual Role of a Preamble and Statutory Interpretation (1999) (23 Melbourne University LREV 184). 66 The preamble to an act may well set the context in which it is to be construed. In the present case the first paragraph of the preamble indicated that citizenship represented membership of "the community of the Commonwealth of Australia" and was a "common bond, involving reciprocal rights and obligations, uniting all Australians". Inevitably, the vast bulk of the Australian community resides within Australia. Clearly, the purpose of the Act was to identify the circumstances in which a person should be recognized as a member of that Australian community. Of the provisions in Part 2 of the Act concerning entitlement to citizenship or eligibility to apply for citizenship, all but s 21(5) required either: birth in Australia; or an Australian parent, biological, or adoptive; or permanent residence in Australia; or in the case of an abandoned child, presence in Australia; or a parent who was formerly Australian; or in some cases, no doubt for historical reasons, relationship with Papua or New Guinea. 67 The preamble also suggested that Parliament intended that citizenship would generally, at some stage, involve physical presence in Australia. The idea of reciprocal rights and obligations suggested behaviour from day to day, in the exercise, satisfaction and recognition of such rights and obligations, in the general Australian community. The references to respecting rights and liberties and upholding and obeying Australian law had a similar effect. In the case of an infant, the preamble no doubt looked to the future, expecting that he or she would be brought up to share the values of the Australian community, and to accept and respect the rights and obligations of citizenship. Where the child's parents had no right of permanent residence, there would have been a degree of uncertainty or, perhaps, unreality, in such an expectation. From the context of the Act as a whole, we infer that in considering an application under s 21(5), the Minister was at least to take into account the nature of an applicant's existing relationship with Australia, using that term to describe both Australian geographical territory and Australian society. 68 Section 2A, read in the context of the explanatory memorandum, may support such an approach, although it was inserted after introduction of the relevant bill and prior to its final enactment. See explanatory memorandum at p 7. The section, as it concerns citizenship by conferral, might, if considered in isolation, be construed in at least two ways. It might mean that the requirement for permanent residence applied generally (but not inevitably) to all applications pursuant to subdiv 2B. Alternatively, it might simply have recognized that subss 21(2), (3) and (4) required permanent residence, whilst subss 21(5), (6), (7) and (8) did not. We again point out that unlike s 21(5), ss 21(6), (7) and (8) all required some association with Australia. In our view, the explanatory memorandum clearly contemplated that s 21(5) would operate primarily in connection with permanent residents. Section 2A should not be read as limiting the operation of s 21(5) to permanent residents. However it would be consistent with the explanatory memorandum to read it as authorizing a policy which recognized that the purpose of that subsection was primarily to facilitate the grant of citizenship to permanent residents under 18 years of age. Given that primary purpose, an application by a non-permanent resident could properly be described as "exceptional" or "unusual" and treated accordingly. The word "very" merely demonstrated the emphasis placed by the Minister upon s 2A. 69 We conclude that the Instructions constituted a valid policy which the Tribunal was entitled to consider.

Singh v Minister for Immigration and Citizenship

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Judgment (16 paragraphs)

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