FEDERAL COURT OF AUSTRALIA

Minister for Home Affairs v G [2019] FCAFC 79

ORDERS

THE COURT ORDERS THAT:

1.    The name of the appellant be changed to the Minister for Home Affairs.

2.    The appeal be allowed.

3.    The declaration in paragraph 4 of the orders of the primary judge dated 5 September 2018 be set aside.

4.    The appellant pay the first respondent’s costs of the appeal, as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The issue raised by this appeal concerns the validity of an executive policy. Specifically, the issue is whether a part of the Australian Citizenship Instructions (the Instructions), being an executive policy in relation to the Australian Citizenship Act 2007 (Cth), is inconsistent with the Act and therefore unlawful.

2    The respondent (G) is a child with a disability. He was born in Australia in 2009 and is a citizen of Albania. In January 2013, he was granted a protection visa and became a permanent resident of Australia. On 10 February 2015, G’s mother, on his behalf, applied for G to be granted Australian citizenship by conferral. On 16 July 2015, a delegate of the Minister for Immigration and Border Protection, as the Minister was then named, refused the application. The delegate accepted that G was eligible to become an Australian citizen under s 21(5) of the Australian Citizenship Act, but decided to exercise the discretion available under s 24(2) of the Act to refuse the application, on the basis that G did not satisfy the policy guidelines set out in the Instructions. G applied to the Administrative Appeals Tribunal (the Tribunal) for review of the decision of the delegate. The Tribunal affirmed the decision under review.

3    G (through his litigation guardian) commenced a proceeding in this Court seeking judicial review of the Tribunal’s decision, pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth). In his amended originating application, G relied on four grounds of review. These included that the Tribunal had inflexibly applied a policy (namely, the Instructions). The primary judge upheld each of the grounds of review. On 5 September 2018, her Honour made orders that: the decision of the Tribunal be set aside; the matter be remitted to the Tribunal for determination according to law; and the Minister pay G’s costs. There is no appeal from these orders.

4    Ground 2 of the amended originating application included a contention that a part of the Instructions was invalid. The primary judge accepted this contention and made a declaration to reflect her conclusion. The declaration, contained in paragraph 4 of the orders made on 5 September 2018, was in the following terms:

THE COURT DECLARES THAT:

4.    The part of section 5.12.5 of the Australian Citizenship Instructions (as re-issued on 1 July 2014) emphasised in bold below is inconsistent with the Australian Citizenship Act 2007 (Cth) and unlawful:

Children under 16 applying individually in their own right would usually not be approved under s 24 unless they are permanent residents at the time of application and decision and also meet the following policy guidelines:

…

•    are under 16 when applying, 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 – see section 5.17 Ministerial discretion – significant hardship or disadvantage (s 22(6)) or

…

5    The appellant, now named the Minister for Home Affairs (the Minister), appeals from part of the judgment of the primary judge, namely the declaration in paragraph 4 of the orders. The Minister contends that the primary judge erred in concluding that part of section 5.12.5 of the Instructions was inconsistent with the Australian Citizenship Act and unlawful.

6    For the reasons that follow, we accept this contention. The relevant part of the Instructions was not inconsistent with the Act and was not unlawful. Accordingly, the appeal is to be allowed and the declaration set aside.

The key legislative provisions

7    The Preamble to the Australian Citizenship Act states:

The Parliament recognises 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 recognises 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 beliefs; and

(c)    by respecting their rights and liberties; and

(d)    by upholding and obeying the laws of Australia.

8    Division 2 of Pt 2 deals with acquisition of Australian citizenship by application. Within that Division, Subdiv B (comprising ss 19G-28) deals with citizenship by conferral. The “simplified outline” in s 19G describes the range of circumstances in which a person will be eligible for Australian citizenship by conferral:

19G    Simplified outline

The following is a simplified outline of this Subdivision:

Relevantly for present purposes, one of the situations in which a person may be eligible to become an Australian citizen is if they are aged under 18; this situation is dealt with specifically in s 21(5), which is set out below.

9    Section 20 sets out the requirements for becoming an Australian citizen:

20    Requirements for becoming a citizen

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.

Note:    Sections 21 to 25 deal with the Minister approving the person becoming an Australian citizen. Sections 26 and 27 deal with the making of a pledge of commitment.

10    The provisions relating to the making of the pledge of commitment do not apply to a person who is under 16 years of age at the time of making the application to become an Australian citizen: see s 26(1)(a).

11    Section 21 deals with the application for citizenship and eligibility. Section 21(2) sets out the general eligibility criteria for persons aged 18 or over at the time of making the application. The criteria are detailed and include that the person: is a permanent resident at the time of making the application and at the time of the Minister’s decision on the application; satisfies either the general residence requirement (which is dealt with in s 22), the special residence requirement (see s 22A or 22B) or the defence service requirement (see s 23) at the time of making the application; and is of good character at the time of the Minister’s decision on the application. Other parts of s 21 deal with applicants who have a permanent or enduring physical or mental incapacity (s 21(3)), or who are over 60 years of age, or have a hearing, speech or sight impairment (s 21(4)). Other parts of s 21 deal with children of former Australian citizens, people born in Papua and stateless people.

12    The part of s 21 that is directly relevant for present purposes is s 21(5), which applies to persons aged under 18. It provides:

(5)    A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

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

(b)    is a permanent resident:

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

(ii)    at the time of the Minister’s decision on the application.

13    Section 22 sets out a number of provisions about the “general residence requirement”, which forms part of the eligibility criteria for some categories of applicant. While this provision is not directly relevant to G’s application for citizenship, the provision is referred to in the part of the Instructions that relates to G’s circumstances. We will therefore outline some aspects of s 22 in order to provide context for the relevant parts of the Instructions. Section 22(1) provides as follows:

Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:

(a)    the person was present in Australia for the period of 4 years immediately before the day the person made the application; and

(b)    the person was not present in Australia as an unlawful non-citizen at any time during that 4 year period; and

(c)    the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.

14    Section 22(6) is an ameliorative provision in the following terms:

For the purposes of paragraph (1)(c), the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:

(a)    the person was present in Australia during that period (except as a permanent resident or an unlawful non-citizen); and

(b)    the Minister is satisfied that the person will suffer significant hardship or disadvantage if that period were not treated as one during which the person was present in Australia as a permanent resident.

15    Section 24 confers a general power on the Minister to approve or refuse to approve a person becoming an Australian citizen. Its text, relevantly, is as follows:

24    Minister’s decision

(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).

16    Section 24 then sets out a number of other, specified circumstances in which the Minister is precluded from granting citizenship. These circumstances include: where the Minister is not satisfied of a person’s identity; where the person has an adverse security assessment; where a person is in prison, or facing proceedings for any offence against Australian law; or if a person’s former citizenship status has ceased in the preceding 12 months.

The Instructions

17    We now describe the relevant parts of the Australian Citizenship Instructions (referred to in these reasons as the “Instructions”, but also referred to internally in the Instructions as the “ACIs”). The version of the Instructions applicable in the present case is the version issued on 1 July 2014. The Instructions comprise 278 pages, divided into 20 chapters. The Instructions are further divided into numbered parts, referred to as “sections”.

18    There is no power conferred by the Australian Citizenship Act to make the Instructions. Despite appearing in a form that resembles a legislative instrument or that has a statutory source, the Instructions are made in an exercise of executive power.

19    The introduction to the Instructions commences with the following paragraph:

The role of the ACIs is to support the Australian Citizenship Act 2007. The instructions provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations. Decision makers should be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers under the Act.

(Emphasis added.)

20    Chapter 5 of the Instructions deals with citizenship by conferral. It is divided into 31 sections, numbered from 5.1 to 5.31. Of principal relevance for present purposes is section 5.12, which deals with persons aged under 18 years. Section 5.12 is itself divided into eight sections, numbered 5.12.1 to 5.12.8. Sections 5.12.1 and 5.12.2 are in the following terms:

5.12.1    When was application received

For applications received before 9 November 2009, refer to the Act and ACIs in effect immediately before 9 November 2009.

For applications received on or after 9 November 2009, a person under the age of 18 years applying for Australian citizenship by conferral under s21(5), must be a permanent resident (that is, they must have activated their permanent visa) at the time of application and at the time of decision to be eligible for Australian citizenship.

Person aged under 18

(5)    A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

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

   (b)    is a permanent resident:

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

(ii)    at the time of the Minister’s decision on the application.

The discretion in s24(2) to refuse to approve an applicant becoming an Australian citizen despite being eligible under s21(5) would usually be exercised where the applicant does not meet the policy guidelines. In making a decision whether to refuse or approve an application, the primary considerations that need to be taken into account are the legislative requirements, the best interests of the child and the policy guidelines set out below.

5.12.2    Best interests of the child

The best interests of the child are to be considered as one of the primary considerations when assessing the application. This consideration only applies if the child is or would be less than 18 years of age at the time of decision on the application and the child is living in Australia. See Chapter 18 – Best interests of the child.

21    Section 5.12.5 provides:

5.12.5    Applicants under the age of 16

A child aged under 16 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 s46(2A).

In the case of an applicant who does not meet the policy guidelines below, decision makers must consider the full circumstances of the case, including the best interests of the child, to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances.

Guidance on whether it may be reasonable to consider a particular set of circumstances as unusual can be obtained through the Citizenship Helpdesk.Under policy, if an applicant is under 16 years of age a responsible parent must sign the application form.

Children under 16 applying individually in their own right

Children under 16 applying individually in their own right would usually not be approved under s24 unless they are permanent residents at the time of application and decision and also meet the following policy guidelines:

•    are under 16 when applying and living with a responsible parent who is an Australian citizen and who consents to the application or

•    are usually resident in Australia with a permanent resident responsible parent who consents to the application, and that responsible parent would meet the residence requirement but has decided not to apply for Australian citizenship because they would lose the citizenship of another country or

•    are under 16 when applying, 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 - see section 5.17 Ministerial discretion - significant hardship or disadvantage (s22(6)) or

•    are an unaccompanied humanitarian minor who falls under the Minister’s guardianship and a delegated guardian has consented to the application, see section 5.12.7 IGOC minors (previously wards of the Minister) or

•    are an unaccompanied humanitarian minor who does not fall under the Minister’s guardianship and their responsible carer has consented to the application, see section 5.12.8 Non-IGOC minors (previously unaccompanied humanitarian minor (UHM) non-wards).

Other requirements which must be satisfied relating to identity, national security, offences and former citizens are set out in section 5.27.1 Minister’s decision (s24) - summary.

Children under 16 applying on the same form and at the same time as a responsible parent

Children under 16 applying on the same form and at the same time as a responsible parent would usually not be approved under s24 unless they are permanent residents at the time of application and decision and also meet the following policy guidelines:

•    the child was living in Australia with the relevant responsible parent and

•    the relevant responsible parent consented to the inclusion of the child in their application.

Other requirements which must be satisfied relating to identity, national security, offences and former citizens are set out in section 5.27.1 Minister’s decision (s24) - summary.

Note: Decision makers must make a separate decision record for each applicant included on the application if the application is to be refused.

Note: If a child under 16 applies on the same form and at the same time as a responsible parent, and that parent is refused, the child must be assessed against the policy guidelines for children under the age of 16 applying individually in their own right.

The parts of section 5.12.5 that are particularly relevant are the second paragraph (commencing “In the case of …”), the paragraph immediately after the heading “Children under 16 applying individually in their own right” and the third bullet point under that heading.

22    Section 5.17 of the Instructions is headed “Ministerial discretion – significant hardship or disadvantage (s22(6))”. We refer to this section as it is cross-referenced in the third bullet point in section 5.12.5. Section 5.17.2 states, in part, as follows:

5.17.2    What is significant hardship or disadvantage

The Macquarie Dictionary Fifth Edition makes the following definitions:

significant    important; of consequence

hardship    a condition that bears hard upon one; severe toil, trial, oppression, or need

disadvantage    absence or deprivation of advantage; any unfavourable circumstance or condition

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 or cannot obtain an alternative travel document

•    academic (for example, research, academic scholarship) or other (sporting etc) potential is being limited or restricted, because the opportunities to reach that potential is available only to an Australian citizen, to the extent that it causes significant hardship.

Applicants would need to demonstrate that not having citizenship is the only or major cause for the significant hardship or disadvantage. Decision makers will need to assess each application on its merits with particular reference to all the circumstances of the case to assess whether the person’s lack of Australian citizenship is the only or major cause of the significant hardship or disadvantage.

Evidence is required that a person’s lack of Australian citizenship is the cause of the:

•    significant hardship

or

•    disadvantage.

For example, a letter from a potential employer, scholarship, sporting body stating that the person’s citizenship status is the only reason they have not been selected, plus a statement in writing from the applicant, with appropriate supporting documentation, evidencing the significant hardship or disadvantage this has caused.

The onus is on the applicant to provide the evidence to support the application. 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.

When making a decision regarding whether a person’s circumstances constitute “significant hardship or disadvantage” officers should be aware of the difference between personal needs and personal wants.

Personal needs relate 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 (that is, the right to vote, election to Parliament, eligibility for HECS-HELP, representing Australia internationally in academics or sport).

Australian citizenship is not a requirement to study in Australia at the primary or secondary levels. Australian universities may admit students who are not Australian citizens however eligibility for Commonwealth supported place may be limited to Australian citizens or permanent humanitarian visa holders.

Further information on Commonwealth supported places is available from the Department of Industry, Innovation, Science, Research and Tertiary Education. Education, Science and Training at: http://www.innovation.gov.au/Pages/default.aspx

Background

23    The following summary of the background facts is substantially drawn from the reasons of the primary judge (the Reasons).

24    G was born in Australia. He has a younger brother who was born in Australia in 2011. G has, on the uncontested medical evidence before the Tribunal, a severe language disability, borderline low IQ and Autism Spectrum Disorder. His parents are citizens of Albania. In 2004 and 2005 they applied for protection visas, in respect of Albania. They were unsuccessful and were therefore barred by s 48A of the Migration Act 1958 (Cth) from applying again, without a favourable exercise of the Minister’s discretion under s 48B of the Migration Act.

25    G, however, made his own application for a protection visa. It was refused at first instance. On review, in September 2012, the Refugee Review Tribunal found that G faced a real chance of significant harm in Albania. The complementary protection basis for the grant of a protection visa was that the risk of harm arose as a consequence of a blood feud between G’s family and another family. The Refugee Review Tribunal also made findings about the difficulty for G in accessing health and related services in Albania. G was granted a protection visa in January 2013, following the Refugee Review Tribunal findings.

26    Although G’s claim for protection was in large part based on the circumstances of his parents, only G is the holder of a protection visa.

27    G became a permanent resident, while his parents have remained with no certain migration status, and indeed his father remained in immigration detention at the time of the hearing below.

28    G’s mother has a bridging visa which enables her to live in the community with G and his brother, and to work, which she does.

29    The permanent residence status of G meant he was eligible to apply for Australian citizenship, which he did on 10 February 2015. His application was refused by a delegate of the Minister on 16 July 2015. G applied to the Tribunal for review of the delegate’s decision. The Tribunal affirmed the delegate’s decision.

30    The primary judge summarised the Tribunal decision at [71]-[124] of the Reasons. Given the limited nature of the Minister’s appeal, it is not necessary for present purposes to outline the Tribunal’s decision.

The proceeding before the primary judge

31    G applied to this Court for judicial review of the Tribunal’s decision. G relied on four grounds in his amended originating application. For present purposes it is only necessary to refer to ground 2. By this ground, G contended that the “Tribunal erred in applying the policy requirement to demonstrate ‘significant hardship or disadvantage’, such policy requirement being invalid”. In the particulars to this ground it was contended that the invalidity arose from the proper construction of the discretion in s 24(2) of the Australian Citizenship Act, being a construction that precludes the importation of “significant hardship or disadvantage”.

The Reasons of the primary judge

32    As has been noted, the primary judge upheld all four grounds of review. Given the limited nature of the Minister’s appeal, we will focus on the parts of the Reasons relating to ground 2 of the amended originating application (while noting that these parts need to be read in the context of the Reasons as a whole).

33    Her Honour noted that s 24 of the Australian Citizenship Act “confers a general power on the Minister to approve or refuse to approve a person becoming an Australian citizen”, including “a discretion to refuse citizenship even in circumstances where a person has met the eligibility criteria” (Reasons, [28]). Her Honour stated that this is a “broad discretion” that is “highly discretionary, unless the discretion is controlled by any of the specific sub-sections in s 24” (Reasons, [31]).

34    The primary judge criticised the use of the word “usually” in the Instructions, because “the statute does not condition the discretion by any requirement about how it is to be ‘usually’ exercised” (Reasons, [46]). The word “usually” was said to impose “a starting premise on a decision-maker that is not contemplated or authorised by the statute” (Reasons, [46]).

35    At [134], the primary judge stated that the bases upon which she upheld grounds 2, 3 and 4 differed “but all have at their core my view about the extent to which the Citizenship Instructions travel outside the proper range of a policy formulated in an exercise of executive power to guide the exercise of a statutory administrative discretion”. Her Honour stated that, on the basis of invalidity articulated in the amended originating application, she found the Instructions to be unlawful. She also indicated that, had further bases been identified, she may well have found other aspects to be unlawful.

36    At [136], the primary judge discussed s 24 of the Australian Citizenship Act. Her Honour noted that in Singh v Minister for Immigration and Citizenship (2012) 199 FCR 404, the Full Court at [54] approved the description given by Buchanan J in Budilay v Minister for Immigration and Citizenship (2011) 194 FCR 133 that the Minister had a discretion in s 24 whether or not to approve the citizenship application where there was no statutory direction that it not be approved. The primary judge stated that that was how she had approached s 24, but she placed more emphasis on the terms of s 24(1). Her Honour stated: “On their face, the terms of s 24(1) are obviously imperative, requiring the decision-maker to choose between approval or refusal of approval. That is the statutory task. The discretion in s 24(2) is a component of that task, but not the task itself.”

37    The primary judge considered the role of executive policy, especially in the Tribunal, at [139]-[216]. In this section of the Reasons, her Honour discussed the following authorities: Green v Daniels (1977) 13 ALR 1; Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake (No 2)); Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639; and Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189. In the course of considering Drake (No 2), the primary judge stated at [161] that Brennan J’s observations at 640 regarding the value of a guiding policy were concerned with consistency of approach to the exercise of a statutory discretion, and had little or nothing to do with consistency of outcome. Having considered these cases, her Honour discussed the dividing line between a lawful and an unlawful approach to the use of a policy at [200]-[205]. Her Honour then discussed the issue of the lawfulness of a policy itself at [206]-[210]:

206    … I commence with Brennan J’s description in Drake (No 2) at 640. His Honour there identified three factors which might render a policy unlawful: it must allow the decision-maker to take into account the relevant circumstances, it must not require the decision-maker to take into account irrelevant circumstances, and it “must not serve a purpose foreign to the purpose for which the discretionary power was created”.

207    Separately, his Honour stated that a policy would be inconsistent with the statute, and unlawful, if it:

…sought to preclude consideration of relevant arguments running counter to an adopted policy which might be reasonably advanced in particular cases.

208    His Honour also described the boundaries of a lawful policy as one which:

•    does not “control” the exercise of discretion (Drake (No 2) at 641);

•    does not “determine in advance” the decision to be made (at 641);

•    is not one which imposes “broad and binding rules” on the exercise of a discretion (at 640);

•    does not accord a determinative effect to any factor (at 642);

•    does not deny the ability of countervailing factors to lead the decision-maker in particular cases to decline to exercise the power in favour of the individual (at 642); and

•    maintains the discretionary power “intact”, merely specifying weight to be given to a factor or factors (at 642).

209    None of what I say in these reasons is to gainsay the valuable, and entrenched, role of the formulation of executive policy in administrative decision-making. However, what I have sought to focus on in these reasons is the boundary that I consider the Citizenship Instructions cross. That boundary can best be illustrated by reference, again, to what was said by Brennan J in Drake (No 2) (at 642):

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 K C 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, 2nd ed vol 2 para 8.8.)

That is a commendable approach. It is not a rule of law, but it is none the less valuable as a principle of discretionary decision-making.

210    The boundary is clear: policy is not to become a rule of law. The statute is the expression of the rule of law. Executive policy cannot, in form or more importantly in substance, be perceived by decision-makers as, or operate as, a rule. In determining whether a particular policy crosses this boundary, a court must have regard not only to the language of the policy but, in my opinion more critically, to its structure and content. Even if a policy contains a qualification such as that contained in Green, or the Citizenship Instructions, is it really the case that the structure and content of the policy is such that the impression conveyed to decision-makers is that they are to treat the policy as a rule or a set of rules? These matters can be objectively determined. Although one option is to examine an individual exercise of power to see if the decision-maker has erred in treating a policy as a rule which must be followed in the particular exercise of power, for a court to limit its approach to that option may be to fail to grapple with the real difficulty – the nature of the policy itself.

38    The primary judge then considered Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 (Plaintiff M64). Her Honour stated that she did not consider anything said by the High Court in that case compelled her to reach a different conclusion on the application (Reasons, [211]).

39    The primary judge dealt specifically with ground 2 at [244]-[262] of the Reasons. The primary judge commenced this section by stating that section 5.12.5 of the Instructions placed two additional, negative hurdles in the way of a child applicant:

(1)    The first was the instruction that a child applicant under the age of 16 and living with a responsible parent who was not an Australian citizen “would usually not be approved under s 24” unless (in addition to the statutory requirements) they met a series of policy guidelines, including that they could demonstrate “significant hardship or disadvantage” if they were not granted citizenship.

(2)    The second was that, if they did not meet the policy guidelines, they must demonstrate their application nevertheless “warrants approval” because of the “unusual nature” of their circumstances.

40    The primary judge noted at [246] that G’s unlawfulness ground was confined to the imposition by the Instructions of the requirement for a child applicant to demonstrate “significant hardship or disadvantage” if she or he were not to be granted citizenship. G submitted before the primary judge that there were three reasons why that aspect of the Instructions was invalid:

(a)    The notion that “significant hardship or disadvantage” has any significance as a general prerequisite to the grant of citizenship is not supported by any provision in the Australian Citizenship Act.

(b)    The cross reference in the Instructions to the concept of “significant hardship or disadvantage” in s 22(6) introduces through the “back door” a statutory condition for citizenship that the Australian Citizenship Act imposes only in relation to certain, presently irrelevant, residence situations.

(c)    The purpose of the power in s 24 does not support the imposition of “significant hardship or disadvantage” as a further requirement for the grant of citizenship.

41    The primary judge accepted, at [247], that the Instructions “in both their structure and their content, do impose a matter in the nature of a precondition on the exercise of the power under s 24(1) (or, for that matter, the subsidiary discretion in s 24(2)) that is not present in the statute, and is inconsistent with it”.

42    The primary judge noted, at [248]-[249], that G relied on an extract from the explanatory memorandum to the Australian Citizenship Bill 2005 (Cth). After noting that caution is needed when dealing with extrinsic material, and setting out the relevant extract, the primary judge at [250] accepted “that the mischief sought to be addressed by retaining a wide discretion to refuse, was to enable the refusal of applications where it was seen to be in the public interest to do so, bearing in mind this explanatory memorandum also describes citizenship as a ‘privilege’ not a right”. The primary judge at [251] characterised the power in s 24(2) of the Australian Citizenship Act as a “broad, residual discretion, intended by Parliament to inform the principal statutory task in s 24(1)”. The primary judge reasoned at [252]:

There is no suggestion in the explanatory memorandum, nor in the text, context and purpose of the legislative scheme of the Citizenship Act as I have explained it above, to support the proposition that it was Parliament’s intention that the “default position” for the exercise of the power in s 24(1), read with the discretion in s 24(2), should be refusal unless a series of additional requirements are met, including a pre-requisite to show “significant hardship or disadvantage” if citizenship is not conferred. Certainly, the Parliament has expressly considered and adopted the concept of “significant hardship or disadvantage” in a particular context, when dealing with residence eligibility conditions for citizenship applicants. In that context, the concept is used beneficially, as a way for applicants who do not satisfy the statutory criteria to nevertheless seek to meet the residence requirements. It can be taken to have consciously decided not to employ that concept elsewhere. It is beyond the bounds of a lawful executive policy for this statutory concept to be employed for a quite different purpose, particularly a non-beneficial one.

43    The primary judge, at [253], referred to “the dangers which are associated with repetitive and detailed guidelines or guidelines which encourage giving particular weight to particular factors”. After referring to Wong v R (2001) 207 CLR 584, the primary judge reasoned at [257]:

I consider the imposition of a prerequisite that an applicant show “significant hardship or disadvantage” crosses the boundaries discussed by Brennan J in Drake (No 2) and Stephen J in Green. For the same reasons given by Stephen J in Green, this aspect of the Citizenship Instructions is not saved by the use of the adjective “usually” in the phrase “would usually not be approved”. If anything, this adjective contributes to the rule-like quality of this aspect of the guidelines. It purports to instruct decision-makers about what they would “usually” do: that is, they would “usually” refuse to approve unless an applicant had discharged a burden (impermissibly imposed in my opinion) to prove a particular kind of “significant hardship or disadvantage”.

44    The primary judge concluded at [261] as follows:

I find that part of s 5.12.5 of the Citizenship Instructions, emphasised in bold below, is unlawful:

Children under 16 applying individually in their own right would usually not be approved under s24 unless they are permanent residents at the time of application and decision and also meet the following policy guidelines:

…

•    are under 16 when applying, 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 - see section 5.17 Ministerial discretion - significant hardship or disadvantage (s22(6)) or

…

45    This conclusion was subsequently reflected in the declaration set out at [4] above.

46    The key elements of the primary judge’s reasoning can be summarised as follows:

(a)    Section 24 of the Australian Citizenship Act confers a broad discretion that is “highly discretionary” unless the discretion is controlled by one of the specific sub-sections in s 24 (Reasons, [31]).

(b)    The principles discussed by Brennan J in Drake (No 2) and by Stephen J in Green v Daniels were to be applied to determine whether an executive policy was inconsistent with the statute and therefore unlawful (Reasons, [206]-[209], [257]).

(c)    In determining whether a particular policy crosses the boundary, a court must have regard, not only to the language of the policy, but also to its structure and content (Reasons, [210]).

(d)    The Instructions, in both their structure and content, impose a matter in the nature of a precondition on the exercise of the power under s 24(1) (or, for that matter, s 24(2)) that is not present in the statute and is inconsistent with it, namely a “default position” of refusal unless a series of additional requirements are met, including a pre-requisite to show “significant hardship or disadvantage” if citizenship is not conferred (Reasons, [247], [252]).

(e)    This aspect of the Instructions is not saved by the use of the adjective “usually” in the phrase “would usually not be approved”. If anything, the word contributes to the rule-like quality of this aspect of the Instructions (Reasons, [257]).

The appeal

47    The Minister appeals from part of the judgment of the primary judge, namely from the declaration in paragraph 4 of the orders made on 5 September 2018. The sole ground of appeal is as follows:

The primary judge erred in concluding that part of s 5.12.5 of the Australian Citizenship Instructions (as re-issued on 1 July 2014) is inconsistent with the Australian Citizenship Act 2007 (Cth) and unlawful.

Particulars

(a)    Section 24(2) of the Australian Citizenship Act 2007 (Cth) confers a broad discretion on the Minister to refuse to approve a person becoming an Australian citizen. Contrary to the primary judge’s reasons for judgment at [31], the breadth of the discretion justifies rather than limits the making of policy to guide decision-makers in the exercise of that discretion.

(b)    The Australian Citizenship Instructions do not, in terms, impermissibly fetter a decision-maker’s consideration and exercise of power under s 24(2) of the Australian Citizenship Act 2007 (Cth). As the primary judge acknowledged, the Australian Citizenship Instructions state that “Decision makers should be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers under the Act” (Reasons at [37], [38], [210]). And contrary to the primary judge’s reasons at [257], use of the term “usually” in policy does not contribute to the “rule-like quality” of the policy, but is a typical expression designed to recognise that decision-makers can and should consider all the circumstances of the case.

(c)    The primary judge incorrectly interpreted previous authorities as focusing upon consistency of process, which can be a lawful objective of a policy, rather than consistency of outcome, which the primary judge said at [161] cannot be a lawful objective of a policy.

(d)    The correct approach was to examine the Tribunal’s exercise of power in this case, and the Appellant does not challenge the primary judge’s conclusion that the Tribunal inflexibly applied the Australian Citizenship Instructions in this case. The primary judge erred in attributing the Tribunal’s errors of application to the Australian Citizenship Instructions themselves.

Consideration

48    The Minister submits that the primary judge was wrong to be so critical of the word “usually” in section 5.12.5 of the Instructions and wrong to see in the statutory breadth of the discretion in s 24(1) an embedded resistance towards structured guidance through policy. The Minister notes that policies that employ words such as “usually” and “normally” have been upheld in previous cases: see Elias v Federal Commissioner of Taxation (2002) 123 FCR 499 at [34]; Cummeragunga Pty Ltd (in liq) v Aboriginal and Torres Strait Islander Commission (2004) 139 FCR 73 (Cummeragunga) at [156]. See also MLC Investments Ltd v Commissioner of Taxation (2003) 137 FCR 288 at [30].

49    The Minister submits that the distinction between process and outcome, which the primary judge discerned in the authorities, and which appears to have informed her Honour’s ultimate conclusion about inconsistency, is unhelpful and inapt. It is submitted that the distinction between process and outcome is unstable, and that this is illustrated by the present case.

50    The Minister submits that it is precisely when discretions are broad that policies are welcome in order to “promote values of consistency and rationality in decision-making”: Plaintiff M64 at [54].

51    The Minister submits that the extent to which policy can guide a statutory discretion should, in principle, depend on interpretation of the relevant statutory provisions: see Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (Lawbook Co, 6th ed, 2017) at [5.270]. It is submitted that s 24(2) is, in express terms, an open-ended discretion that can only be confined, therefore, by the subject-matter, scope and purpose of the Australian Citizenship Act; and that the subject-matter tells against confining the executive’s capacity to give guidance to delegated decision-makers on how to go about exercising the discretion.

52    The Minister submits that the effect of the primary judge’s reasoning on significant hardship or disadvantage is that, in deciding whether to refuse citizenship under s 24(2), a decision-maker cannot consider whether a person would suffer significant hardship or disadvantage without being granted citizenship. It is submitted that, contrary to the primary judge’s analysis, significant hardship or disadvantage is not a mandatory irrelevant consideration; it is a permissible consideration, which policy can therefore direct decision-makers to take into account: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40; Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86 at [9].

53    In relation to the primary judge’s concern about the extent to which the Instructions resemble legal rules, the Minister submits that: the primary judge gave insufficient weight to the language of the introduction to the Instructions (quoted at [19] above); there is no principle of law that requires the executive to limit itself to policy drafted at any particular level of generality; and, unless the relevant statute, properly construed, precludes detailed policy guidelines being given, it is a matter for the executive as to how to draft its policies.

54    G submits that, because the Minister has not appealed from the orders made by the primary judge setting aside the decision of the Tribunal and remitting the matter for determination according to law, which were made on the basis of all four grounds in the amended originating application, it is not open to the Minister to challenge the primary judge’s conclusion that part of the Instructions was unlawful. G submits that the Minister’s appeal must fail because it neither raises as a ground of appeal, nor shows (or even attempts to show) in written submissions, that the primary judge’s exercise of the discretion to make the declaration miscarried. It is submitted that the Minister is seeking, impermissibly, to challenge reasons rather than orders.

55    G submits that even if the issues of construction of the Australian Citizenship Act, and of consistency of part of the Instructions with it, could properly be said to be before this Court (which is not the case), the Minister:

(a)    accepts that a policy may exceed limits which are identified having regard to the relevant statute; and that, in determining whether a policy will do so, it is permissible to look at both the structure and content of the policy; and

(b)    fails to identify error with the conclusion that, properly and contextually construed, section 5.12.5 of the Instructions “impose[s] a matter in the nature of a precondition on the exercise of the power under s 24(1) (or, for that matter, the subsidiary discretion in s 24(2)) that is not present in the statute, and is inconsistent with it” (Reasons, [247]).

56    G submits that, instead of identifying error, the Minister in his written outline of submissions:

(a)    makes a de-contextualised attack on what the primary judge said about “usually” and how the term is deployed in this particular policy, which in any event was not central to her Honour’s reasoning as to invalidity, let alone to her discretion to grant declaratory relief;

(b)    cites and/or quotes from a range of decisions that either arose in different contexts (i.e. different policies), or are ones where the particular issue in respect of the Instructions was quite different; and

(c)    wrongly suggests that at issue is the correctness of an “effects” test, which the Minister contends (i) flows from the primary judge’s reasons and (ii) means that “significant hardship or disadvantage” will always be a mandatory irrelevant consideration – whatever might be the precise text of the particular part of the Instructions – even though this was not how her Honour concluded the policy was invalid, and once again, in any event, having nothing to do with the exercise of discretion to grant declaratory relief.

57    We will first consider the applicable principles and then address whether the primary judge erred.

58    It is established that an executive policy relating to the exercise of a statutory discretion must be consistent with the relevant statute in the sense that: it must allow the decision-maker to take into account relevant considerations; it must not require the decision-maker to take into account irrelevant considerations; and it must not serve a purpose foreign to the purpose for which the discretionary power was created: see Drake (No 2) at 640 per Brennan J; NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277 at [24] per Gleeson CJ; Cummeragunga at [159] per Jacobson J.

59    An executive policy will also be inconsistent with the relevant statute if it seeks to preclude consideration of relevant arguments running counter to the policy that might reasonably be advanced in particular cases: Drake (No 2) at 640. Thus, an executive policy relating to the exercise of a statutory discretion must leave the decision-maker “free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the [decision-maker] will make in the circumstances of a given case”: Drake (No 2) at 641.

60    However, as Brennan J stated in Drake (No 2) at 641, “[t]hat 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 [decision-maker] usually applies”. In Elias v Federal Commissioner of Taxation, Hely J stated at [34]:

The Commissioner is entitled to adopt a policy to provide guidance as to the exercise of the discretion, provided the policy is consistent with the statute by which the discretion is conferred. Thus if the statute gives a discretion in general terms, the discretion cannot be truncated or confined by an inflexible policy that it shall only be exercised in a limited range of circumstances. A general policy as to how a discretion will “normally” be exercised does not infringe these principles, so long as the applicant is able to put forward reasons why the policy should be changed, or should not be applied in the circumstances of the particular case. See Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640-641; Chumbairux v Minister for Immigration and Ethnic Affairs (1986) 74 ALR 480 at 492-493.

This passage was approved by Jacobson J in Cummeragunga at [156].

61    In Plaintiff M64, in the context of considering an executive policy that prioritised the processing of certain categories of visa applications, French CJ, Bell, Keane and Gordon JJ said at [54]:

Policy guidelines like the priorities policy promote values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike. In particular, policies or guidelines may help to promote consistency in “high volume decision-making”, such as the determination of applications for Subclass 202 visas. Thus in Drake v Minister for Immigration and Ethnic Affairs [No 2], Brennan J, as President of the Administrative Appeals Tribunal, said that “[n]ot only is it lawful for the Minister to form a guiding policy; its promulgation is desirable” because the adoption of a guiding policy serves, among other things, to assure the integrity of administrative decision-making by “diminishing the importance of individual predilection” and “the inconsistencies which might otherwise appear in a series of decisions”. The subjectivity of the evaluation by a decision-maker in a case such as the present highlights the importance of guidelines. The importance of avoiding individual predilection and inconsistency in making choices between a large number of generally qualified candidates by the application of the open-textured criterion of “compelling reasons for giving special consideration” is readily apparent.

(Footnotes omitted.)

Justice Gageler (at [62]) substantially agreed with the reasons of French CJ, Bell, Keane and Gordon JJ.

62    An executive policy that is inconsistent with the relevant statute in the sense described above is unlawful: see Drake (No 2) at 641. It is open to the Court to make a declaration to this effect, but whether it is appropriate to do so depends on an application of the general principles regarding the making of declarations, which are discussed in cases such as Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437-438.

63    Having regard to these principles, in our respectful view, the primary judge erred in concluding that part of section 5.12.5 of the Instructions (namely, the words appearing in bold in the declaration set out at [4] above) was inconsistent with the Australian Citizenship Act and unlawful. Our reasons are as follows.

64    First, the statute confers a broad and unfettered discretion in s 24(1) to approve or refuse to approve a person who has made an application under s 21 becoming an Australian citizen. The breadth of the discretion is confirmed by s 24(2), which provides that the Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under s 21(2), (3), (4), (5), (6) or (7). Further, the relevant eligibility category for present purposes, namely that set out in s 21(5), contains little by way of criteria. In contrast with the eligibility criteria in s 21(2), which are more detailed, s 21(5) provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person:

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

(b)    is a permanent resident at the time the person made the application and at the time of the Minister’s decision on the application.

65    The breadth of the discretion in s 24(1) is not inimical to the adoption of an executive policy, even a detailed executive policy, to guide the exercise of the discretion. To the contrary, the breadth of the discretion tends to support the view that there is no inconsistency between section 5.12.5 of the Instructions and the statute. Moreover, the adoption of a policy in such a case promotes values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike: see Plaintiff M64 at [54].

66    Secondly, section 5.12.5 of the Instructions (or at least the part considered by the primary judge to be inconsistent with the statute) allows the decision-maker to take into account relevant considerations and does not require the decision-maker to take into account irrelevant considerations. The primary judge focussed on the reference, in the third bullet point in section 5.12.5, to the applicant suffering “significant hardship or disadvantage” if not granted citizenship. This third bullet point relates to a limited class of applications under s 21(5): children under 16 who are living with a responsible parent who is not an Australian citizen. If and to the extent that the primary judge considered “significant hardship or disadvantage” to be an irrelevant consideration (in the sense that it was impermissible for the Minister to take it into account when exercising the discretion to approve or refuse to approve an application for citizenship), we would respectfully disagree with her Honour. Neither the text of the legislation, nor the objects of the Act, suggests that the Minister cannot take this matter into account in exercising the discretion. The use of the expression “significant hardship or disadvantage” in s 22(6) should not be read as excluding consideration of this matter in the exercise of discretion under s 24(1). We would not infer that the use of the expression in one context, and its absence in the other, is explicable only on the basis that it was intended to be excluded from the latter.

67    Thirdly, section 5.12.5 of the Instructions does not serve a purpose foreign to the purpose for which the discretionary power was created. In considering this aspect, regard is to be had both to the discretion in s 24(1) to approve or refuse to approve an application for citizenship, and the relevant eligibility category, namely applicants who satisfy the criteria in s 21(5).

68    The executive has historically had a large role in deciding admission into the people of the Commonwealth. This is confirmed by the revised explanatory memorandum for the Australian Citizenship Bill 2005 (Cth), which stated in relation to cl 24 of the Bill:

It has been a uniform feature of naturalisation legislation (ie. citizenship by conferral) throughout the Commonwealth for over a century to give the Executive a wide discretion regarding the approval or refusal of citizenship. This is because Australian citizenship by conferral is a privilege and not a right. The new Act will continue to promote this understanding.

69    Further, the revised explanatory memorandum for the Australian Citizenship Bill 2005 (Cth) envisaged the application of an executive policy in relation to proposed s 21(5) as to when an applicant would “usually” and “not usually” be approved. Before setting out the relevant passage, it should be noted that s 21(5) as originally introduced was not in the same terms as the current provision. As originally introduced, s 21(5) provided that a person was eligible to become an Australian citizen if the Minister was satisfied that the person was under 18 years of age at the time the person made the application; the section did not require the person to be a permanent resident. Section s 21(5) was repealed and replaced by the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009 (Cth). The effect of the amendment was to add the requirement that the person be a permanent resident at the time the person made the application and at the time of the Minister’s decision on the application. (The background to the 2009 amendment is helpfully discussed in Rubenstein K, Australian Citizenship Law (Lawbook Co, 2nd ed, 2017) at [4.700] (chapter authored by K Rubenstein and J Field).) Returning to s 21(5) as originally introduced, the revised explanatory memorandum for the Australian Citizenship Bill 2005 (Cth) made the following observations:

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 subclause would usually be approved if the applicant meets the criteria in subclause (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, applications 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.

70    Thus, the revised explanatory memorandum envisaged the existence of an executive policy in relation to s 21(5) (as originally introduced) under which an application by a person under 18 would “usually” be approved if the person met the (more detailed) eligibility requirements set out in s 21(2), but “would not usually be approved” unless the applicant had a responsible parent who was an Australian citizen. There is no suggestion, in the extrinsic materials relating to the 2009 amendments, that the Parliament intended to depart from the approach outlined in the revised explanatory memorandum for the 2005 Bill.

71    The primary judge was concerned that, under section 5.12.5 of the Instructions, certain applications would usually not be approved unless certain policy guidelines were met. For the reasons indicated, we do not consider the adoption of this policy in relation to certain applications to be contrary to the purpose for which the discretionary power was created.

72    Fourthly, section 5.12.5 of the Instructions does not preclude an applicant raising arguments as to why the policy should not be applied in the particular case, nor does section 5.12.5 seek to control the outcome of the exercise of the discretion. We note, in particular, the following matters:

(a)    The introduction to the Instructions includes the statements that “[d]ecision makers should be mindful that policy must not be applied inflexibly” and that “[p]olicy cannot constrain the exercise of delegated powers under the Act” (see [19] above).

(b)    Section 5.12.5 states, in the second paragraph, that in the case of an applicant who does not meet the policy guidelines below, decision-makers “must consider the full circumstances of the case, including the best interests of the child, to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances” (see [21] above).

(c)    Under the heading “Children under 16 applying individually in their own right”, section 5.12.5 states that children under 16 applying individually in their own right would “usually” not be approved under s 24 unless they meet the policy guidelines there set out.

73    The language used by the section, namely that certain applications would “usually” not be approved unless certain policy guidelines are met, indicates that there will be cases outside the usual course. Thus the policy contemplates that a person may not meet the policy guidelines but their application may nevertheless be approved. In these circumstances, we do not consider it accurate to say that section 5.12.5 of the Instructions imposes a matter in the nature of a precondition on the exercise of the power under s 24(1) (cf Reasons, [247]).

74    Fifthly, we do not regard the structure or content of section 5.12.5 as having a rule-like quality such that it purports to control the exercise of the discretion. As already discussed, section 5.12.5 states that children applying individually in their own right would “usually not be approved” unless they meet certain policy guidelines. But it is also stated that, in the case of an applicant who does not meet these guidelines, decision-makers must consider the full circumstances of the case and whether they are unusual. And, as set out in the introduction to the Instructions, the “policy must not be applied inflexibly”.

75    Sixthly, the circumstances of this case are quite different from those in Green v Daniels. In that case, Stephen J held that a policy was inconsistent with a statutory provision regarding the entitlement to unemployment benefits. The statutory provision (set out at 4 of the report) contained specific criteria. As Stephen J said (at 9), “[n]o general discretion is conferred upon [the Director-General]; instead specific criteria are laid down by the Act and all that is left for him to do is to decide whether or not he attains a state of satisfaction that the circumstances exist to which each of these criteria refer”.

76    Seventhly, we do not accept G’s submission that it is not open to the Minister to challenge the declaration because he has not sought to appeal from the orders of the primary judge setting aside the decision of the Tribunal and remitting the matter for determination according to law. The declaration is a discrete matter and there is no inconsistency between the Minister accepting the correctness of the orders setting aside the decision of the Tribunal and remitting the matter, and challenging the correctness of the declaration.

77    We do not accept G’s submission that the Minister’s appeal must fail because he does not challenge the primary judge’s exercise of the discretion (to make the declaration). It is true that the Minister does not challenge the primary judge’s application of the general principles regarding the making of declarations. But the Minister does challenge the making of the declaration, on the basis that the primary judge erred in concluding that the relevant part of the Instructions was inconsistent with the statute and therefore unlawful. If the Minister’s proposition is correct, it follows that the primary judge erred in making the declaration. It is open to the Minister to adopt this approach. Contrary to G’s submissions, the Minister is not seeking to challenge reasons rather than orders; the appeal challenges the declaration, which forms part of the orders.

78    For these reasons, we respectfully disagree with the primary judge’s conclusion that the relevant parts of section 5.12.5 of the Instructions are inconsistent with the Australian Citizenship Act.

Conclusion

79    In our view, the appeal should be allowed and the declaration set aside. In relation to costs, the Minister has agreed to pay costs regardless of the outcome. We will make an order to this effect. We will also make an order changing the name of the appellant to the Minister for Home Affairs, as requested by the appellant at the outset of the hearing of the appeal.

Associate:

Dated:    21 May 2019