FEDERAL COURT OF AUSTRALIA

Grass v Minister for Immigration and Border Protection [2015] FCAFC 44

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant file and serve written submissions on costs not exceeding 5 pages on or before 4.00pm 3 April 2015.

3.    The respondents file and serve written submissions in response on costs not exceeding 5 pages on or before 4.00pm 10 April 2015.

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

REASONS FOR JUDGMENT

The court:

INTRODUCTION AND SUMMARY

1    This appeal concerns the lawfulness of the cancellation of a citizenship approval given to the appellant in May 2009, such an approval being the first of two necessary steps to become an Australian citizen under the Australian Citizenship Act 2007 (Cth) (the Act). The approval cancellation, and the conduct preceding it, precluded the appellant from acting on the approval and taking the pledge of commitment so as to become an Australian citizen in accordance with the Act.

2    For the reasons set out below, we would dismiss the appeal.

RELEVANT LEGISLATIVE FRAMEWORK

Australian Citizenship Act 2007 (Cth)

3    The Preamble to the Act states:

Preamble

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.

4    The appellant emphasised the centrality of the pledge in the Preamble and therefore, she submitted, in the Act.

5    Division 2 of Pt 2 of the Act sets out the way in which a person can acquire Australian citizenship by application. Subdivision B of Div 2 deals with citizenship by conferral.

6    Section 20 sets out the requirements for becoming a 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.

7    The requirements for general eligibility for citizenship are set out in s 21(2):

General eligibility

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

(a)    is aged 18 or over 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; and

(c)    satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and

(d)    understands the nature of an application under subsection (1); and

(e)    possesses a basic knowledge of the English language; and

(f)    has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and

(g)    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

(h)    is of good character at the time of the Minister’s decision on the application.

8    It can be noted at this point that, subject to limited exceptions for persons aged under 18 or certain stateless persons, a person must be of good character to be approved: see s 24(1A). The phrase “good character” is not defined in the Act.

9    If an application is made, the Minister has a duty either to approve or refuse to approve the person becoming an Australian citizen: s 24(1). Even if a person is eligible to become an Australian citizen (including being of good character) the Minister may refuse approval: s 24(2). Section 24 also requires the Minister to be satisfied of a number of other matters relating, broadly, to identity, risks to Australia’s national security, presence in Australia, and whether a person has been sentenced to imprisonment, or has criminal proceedings pending against her or him.

10    Section 25 authorises the Minister to cancel an approval given under s 24(1) in certain circumstances. It is a critical provision to the resolution of this appeal. It provides:

25 Minister may cancel approval

(1)    The Minister may, by writing, cancel an approval given to a person under section 24 if:

(a)    the person has not become an Australian citizen under section 28; and

(b)    either of the following 2 situations apply.

Eligibility criteria not met

(2)    The first situation applies if:

(a)    the person is covered by subsection 21(2), (3) or (4); and

(b)    the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:

(i)    not a permanent resident; or

(ii)    not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia; or

(iii)    not of good character.

Failure to make pledge of commitment

(3)    The second situation applies if:

(a)    the person has failed to make a pledge of commitment within 12 months after the day on which the person received notice of the approval; and

(b)    the person’s reason for the failure is not one that is prescribed by the regulations for the purposes of this subsection.

Cancellation of child’s approval

(4)    If:

(a)    a child aged under 16 makes an application under section 21 at a particular time; and

(b)    1 or more responsible parents of the child make applications under section 21 at that time; and

(c)    the Minister decides under section 24 to approve the child and 1 or more of the responsible parents becoming Australian citizens; and

(d)    the Minister cancels the approval given to each responsible parent;

the Minister must, by writing, cancel the approval given to the child.

Effect of cancellation

(5)    If the Minister cancels an approval given to a person, the approval is taken never to have been given.

Note:    A person cannot become an Australian citizen under this Subdivision unless the Minister approves the person becoming an Australian citizen. This subsection has the effect that the person will need to make another application if the person wants to become an Australian citizen.

11    Section 26 is also a critical provision to the resolution of this appeal. It deals with the making of the pledge of commitment, the second of the two requirements for citizenship under s 20 of the Act. It provides:

26 Pledge of commitment must be made

(1)    A person must make a pledge of commitment to become an Australian citizen unless the person:

(a)    is aged under 16 at the time the person made the application to become an Australian citizen; or

(b)    has a permanent or enduring physical or mental incapacity, at the time the person made the application to become an Australian citizen, that means the person:

(i)    is not capable of understanding the nature of the application at that time; or

(ii)    is not capable of demonstrating a basic knowledge of the English language at that time; or

(iii)    is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time; or

(c)    is covered by subsection 21(6), (7) or (8).

Note:    See section 27 for how the pledge is to be made.

(2)    A person must not make a pledge of commitment before the Minister approves the person’s application to become an Australian citizen. A pledge of commitment made by the person before that time is of no effect.

Delayed making of pledge

(3)    If the person is required to make a pledge of commitment and has not done so, the Minister may determine, in writing, that the person cannot make the pledge until the end of a specified period if the Minister is satisfied that:

(a)    a visa held by the person may be cancelled under the Migration Act 1958 (whether or not the person has been given any notice to that effect); or

(b)    the person has been or may be charged with an offence under an Australian law.

(4)    The Minister must not specify a period that exceeds, or periods that in total exceed, 12 months.

(5)    The Minister may, by writing, revoke a determination.

(6)    If a determination is in force in relation to a person, the person must not make a pledge of commitment before the end of the period specified in the determination. A pledge of commitment made by the person before that time is of no effect.

12    Section 27 prescribes how the pledge of commitment is to be made, and must be read in conjunction with the Australian Citizenship Regulations 2007 (Cth) (the Regulations). The pledge of commitment must be made before the Minister or a person or class of persons authorised by the Minister: s 27(3). Regulation 8 prescribes the following arrangements for the making of the pledge of commitment:

8 Arrangements for making pledge of commitment

For subsection 27(2) of the Act, the arrangements are:

(a)    the pledge of commitment must be made in public if it is reasonably practicable; and

(b)    the person before whom the pledge is made must read aloud the address specified in Schedule 1 to the person making the pledge.

Note:    The Department may notify additional arrangements for making a pledge of commitment, or conducting a ceremony, that are designed to impress upon applicants the responsibilities and privileges of Australian citizenship.

13    Schedule 1 to the Regulations prescribes the following preamble to be read to persons making the pledge of commitment:

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.

Persons on whom Australian citizenship is conferred enjoy these rights and undertake to accept these obligations:

(a)    by pledging loyalty to Australia and its people;

(b)    by sharing their democratic beliefs;

(c)    by respecting their rights and liberties; and

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

14    Section 28(1) provides that a person becomes an Australian citizen on the day on which the person makes the pledge.

15    The Act provides for the renunciation of citizenship, and also for the revocation of citizenship through a decision by the Minister. Section 34(2) relevantly sets out the circumstances in which the Minister may revoke the citizenship of a person where that citizenship was conferred under Subdiv B of Div 2:

Citizenship by conferral

(2)    The Minister may, by writing, revoke a person’s Australian citizenship if:

(a)    the person is an Australian citizen under Subdivision B of Division 2 (including because of the operation of section 32); and

(b)    any of the following apply:

(i)    the person has been convicted of an offence against section 50 of this Act, or section 137.1 or 137.2 of the Criminal Code, in relation to the person’s application to become an Australian citizen;

(ii)    the person has, at any time after making the application to become an Australian citizen, been convicted of a serious offence within the meaning of subsection (5);

(iii)    the person obtained the Minister’s approval to become an Australian citizen as a result of migration-related fraud within the meaning of subsection (6);

(iv)    the person obtained the Minister’s approval to become an Australian citizen as a result of third-party fraud within the meaning of subsection (8); and

(c)    the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.

16    It is apparent that the circumstances in which the Minister is empowered to revoke citizenship are much more confined than those in which the Minister is, first, able to refuse approval and, second, able to cancel an approval.

Administrative Decisions (Judicial Review) Act 1977 (Cth)

17    The second piece of legislation in issue on the appeal is the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the AD(JR) Act). The provision in issue is s 16(1), which provides:

16 Powers of the Federal Court and the Federal Circuit Court in respect of applications for order of review

(1)    On an application for an order of review in respect of a decision, the Federal Court or the Federal Circuit Court may, in its discretion, make all or any of the following orders:

(a)    an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the court specifies;

(b)    an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the court thinks fit;

(c)    an order declaring the rights of the parties in respect of any matter to which the decision relates;

(d)    an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.

18    Section 16(4) should also be noted:

(4)    The Federal Court or the Federal Circuit Court may at any time, of its own motion or on the application of any party, revoke, vary, or suspend the operation of, any order made by it under this section.

BACKGROUND FACTS

19    The appellant is a citizen of the Philippines and currently holds a permanent spouse visa to enter and reside in Australia. She has held that visa since 2008. Some six years ago, she applied to become an Australian citizen. Her husband, Mr Grass, is an Australian citizen.

20    The appellant’s citizenship application was approved on 21 May 2009. As will appear from the Act, and the Regulations, once an applicant has an approval of her citizenship, the only remaining step is to take the pledge of commitment before a person authorised to take that pledge. This can be done at any time, and need not occur at any particular kind of function or ceremony. Despite this, the administrative practice of the Department of Immigration and Border Protection and of the Department of Immigration and Citizenship (as it then was) is to arrange for “citizenship ceremonies” to be held in various locations around the country, and for persons with approvals to take the pledge at such ceremonies. It is the existence of this practice, together with the fact that the appellant believed she had to wait for such a ceremony, which led to the unfortunate sequence of events underlying this appeal.

21    The evidence on the appeal shows that the appellant understood there was generally a three month delay between citizenship approval and her ability to take the pledge in accordance with s 26 of the Act. She, and her husband, made a number of enquiries of the Department of Immigration and Citizenship (as it then was) (the Department), but received no notification about the date for her citizenship ceremony.

22    Departmental records showed that the appellant was listed to take the pledge at a ceremony on 1 July 2009, although she was never notified of this. An internal departmental instruction to place the citizenship conferral on hold was in evidence on the appeal, with the date of occurrence recorded as 29 May 2009. Not having been notified of the citizenship ceremony listing, the appellant was of course not notified when it was put on hold.

23    The extent of the deception intended to be practised by officers within the Department is revealed by the following (undated) entry:

Client called MCC regarding ceremony as has been waiting over 6 months since approval. Megan Slattery contacted by MCC TL Catherine Brown - have been advised client ceremony still on hold pending investigation. Client NOT to be advised of investigation or that ceremony on hold. Please speak to Megan Slattery if there are further questions. Client advised that there is currently a big waiting list for ceremony, and they will be contacted in due course.

24    The deception continued. The next (undated) entry in the departmental records states:

Hi Megan

I contacted the client’s husband Mr John Grass in response to the email recd and gave him the same information I told the client yesterday that at this stage Ryde Council have not provided any ceremony dates for next year. He was quite persistent about knowing approximately when her ceremony would be as he had found out from the council that they hold ceremonies every month for 100 clients and he was sure his wife would be somewhere on the top of the list. I advised him that there were still clients who were approved about the same time as his wife waiting for a ceremony. Without advising him about the pending investigation, I said that the clients who were approved about May would be invited about Feb or March. I also advised him that 100 clients per ceremony did not mean the first 100 on the list. Some families had many children included in their application and the more number of children the number of main applicants would diminish. He said we should do something about clients waiting for citizenship so long. His wife was depending on her citizenship as she had travel plans. He then thanked me for responding to his enquiry.

25    We note Ms Slattery is the delegate who then made the decision cancelling the appellant’s citizenship approval. These records, although undated, were clearly made some time between 29 May 2009 and 5 July 2010, a period of over 13 months. The reference in the first record to “waiting over 6 months” certainly suggests the record was made after November 2009, as the appellant’s submissions suggest. The reference in the second record to “next year” suggests it was made prior to January 2010. Whatever the precise dates, it is clear the appellant and her husband were misled over a sustained period of time.

The cancellation decision and its consequences

26    It was on 5 July 2010 that Ms Slattery notified the appellant that her citizenship approval had been cancelled. Thus there was a period of over 13 months during which the appellant could have attended on any of the persons to which we have referred at [12] above and made the pledge, had she not been consciously misled by departmental officers into thinking she had to wait to be notified by the Department of a citizenship ceremony she was permitted to attend.

27    The 5 July 2010 cancellation decision was made on the ground that the appellant was not of good character, because she was found to have given false information to the Department about her date of birth, identity, marital status and family composition. The different available information about the appellant’s correct date of birth (that is, whether it was in 1966, as she claimed, or in 1954 as some official records of the Philippines showed) had been a source of debate between the appellant and the Department, on the evidence, for approximately nine years. The appellant claimed there were very traumatic circumstances, which need not be repeated here, that led to her parents’ alteration of her “official” birth records. At one stage, the evidence on the appeal clearly demonstrates the Department accepted the appellant was born in 1966. Despite this, the delegate found the appellant to be not of good character.

28    The appellant applied for review of the cancellation decision to the Administrative Appeals Tribunal (AAT), but then withdrew the review application. She deposed to having done so because of advice received that she could not pursue a complaint to the Commonwealth Ombudsman about the conduct of officers of the Department at the same time as pursuing a review application. A subsequent application by the appellant to reinstate the application or to receive an extension of time to make a further application for review of the cancellation decision was refused by the AAT. She did not appeal that refusal to this Court.

29    The appellant and her husband have lodged complaints, including in July and December 2011, with the Commonwealth Ombudsman in relation to her dealings with the Department. Subsequently, following concerns raised by the Commonwealth Ombudsman that on the information before it a departmental officer may have engaged in misconduct, a unit within the Department, called the “Values and Conduct Section”, carried out an investigation. It found the officer concerned had breached the Department’s Code of Conduct and imposed an unspecified sanction. The investigation found there was a deliberate and improper delay of the appellant’s citizenship ceremony. The Commonwealth Ombudsman wrote to the Acting Assistant Secretary of the Department on 9 July 2012, inquiring what remedial action the Department proposed to undertake. The only evidence of any response from the Department was a conversation with an officer of the Ombudsman in October 2012 to which the appellant deposed, in which she was told that the Department had replied to the Ombudsman and that she would not be allowed to attend a citizenship ceremony.

The Federal Magistrates Court proceedings

30    In November 2012, the appellant issued proceedings in the Federal Magistrates Court (as it then was) under the AD(JR) Act to set aside Ms Slattery’s cancellation decision. The application was amended but ultimately contended the cancellation decision should be set aside on the grounds of apprehended bias and improper exercise of power. The appellant also sought an extension of time in which to apply for judicial review.

31    In January 2013, the Minister’s solicitor informed the appellant she had instructions to concede the judicial review application in the appellant’s favour. The Minister proposed consent orders setting aside the cancellation decision on the ground it was affected by a reasonable apprehension of bias. The consent orders proposed the cancellation decision be set aside as from 8 April 2013, and that an injunction be issued restraining the appellant from taking a pledge of commitment until at least 22 April 2013.

32    The appellant would not agree to the prospective setting aside of the cancellation decision, nor to the terms of the injunction and the matter proceeded to a contested hearing on that basis.

33    The injunction was ultimately not pressed by the Minister. The Court otherwise made orders in the terms sought by the Minister. Recognising that any order setting aside the cancellation decision would restore the citizenship approval given to the appellant under s 24(1) of the Act and entitle the appellant to take the pledge, the Court stated if no such orders were made there could be a “race by the parties to pledge commitment and to cancel the approval” (Grass v Minister for Immigration [2013] FMCA 74 at [14]). Deciding, we infer, that there should be no such “race”, the Court held that the cancellation did not have to be treated as a nullity from the day it was made, and that s 16(1)(a) of the AD(JR) Act empowered the Court to determine the time from which the decision should be set aside, including a time in the future (at [16]). Despite what it described (at [21]) as “improper” conduct by officers of the Department in delaying the appellant’s taking of the pledge, the Court found it should permit the Minister “to decide in a careful and considered way, observing the rules of natural justice, whether Australian citizenship should be conferred on the applicant” (at [22]).

34    On 13 February 2013, the Court relevantly ordered:

Pursuant to s.16(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), the respondent’s decision dated 5 July 2010 to cancel the approval of the applicant’s Australian citizenship application be set aside with effect from 8 April 2013.

The second cancellation decision

35    On 8 April 2013 (that is, on the same day that the Federal Magistrates Court’s orders took effect at midnight to set aside the 5 July 2010 cancellation decision), another delegate again determined to cancel the appellant’s citizenship approval. No doubt entirely deliberately, the second cancellation decision had been determined and prepared in advance of the setting aside coming into effect, so that no window could be given to the appellant to make arrangements to take the pledge of commitment. Again, the ground relied on was s 25(2)(b)(iii) of the Act – that the appellant was not of good character. At issue was whether the appellant was still married to a person in the Philippines and in a bigamous marriage, given she was also married to her husband Mr Grass in Australia. This turned, the second delegate found, on the appellant’s date of birth and whether her argument that her first marriage was void should be accepted. The second delegate did not accept the appellant’s explanations and found the appellant had provided “conflicting information in successive Visa applications” and engaged in a “pattern of misrepresentation”, which suggested she had been “purposefully giving false information to suit [her] own interests”.

36    The appellant’s husband applied for review of the second delegate’s decision in the AAT, but discontinued that application for reasons relating to the trauma the appellant claimed led to the change in her Philippine records of her date of birth. There has been no suggestion those reasons for discontinuance were anything other than genuine.

The Federal Court proceedings

37    Instead, the appellant applied for relief pursuant to s 39B of the Judiciary Act 1903 (Cth) against the orders of the Federal Magistrates Court. The Minister made no objection to the lengthy time period which had elapsed between the making of the two decisions challenged and the bringing of this judicial review application. Nor did the Minister make any submissions that the Court should, as a matter of discretion, refuse to grant relief if it found relief was otherwise appropriate.

38    The grounds of the application were that the Federal Magistrates Court’s orders were affected by jurisdictional error because their effect was to “perpetuate the Minister’s error” in the cancellation decision. The error was said to be a failure to give effect to the proper construction and operation of s 26(3) and (4) of the Act. The effect of those provisions was contended to be that “the Minister cannot prevent a person who has had their application for Australian Citizenship approved under section 24 of the Act from taking their pledge of commitment under s. 27 of that Act for a period exceeding 12 months while that approval remains in place”. The operation of s 26(3) and (4) was contended to impose a constraint on the Minister’s cancellation power under s 25(2) of the Act. The appellant also contended the Federal Magistrates Court had erred in construing s 16(1)(a) of the AD(JR) Act which, she contended, did not authorise the Court to make the kind of prospective order it had made.

39    The learned primary judge did not accept these contentions. He found (at [22]) that the date the cancellation decision was set aside did not matter:

Subject to the next argument to be identified, it does not matter in my view whether the order made by the FMCA took effect on the date it was made (13 February 2013) or on 8 April 2013. That is because, whatever might have been the opportunities available to the applicant to quickly make a pledge of commitment once the decision of the first delegate was set aside (if she could arrange to do so before the Minister could make a further decision), the fact is that such a pledge of commitment was not made before 8 April 2013. Section 20 of the Act makes a pledge of commitment a fundamental condition for citizenship. The applicant could not be a citizen without making a pledge of commitment, whatever error might have been made by the FMCA. The applicant’s case, therefore, had to focus on the decision of the second delegate, and show it was invalid.

40    Even if the date was significant, the primary judge found the Federal Magistrate Court’s orders were within power. He said (at [27]):

It therefore appears from the ADJR Act that a decision made in denial of natural justice might be set aside from a date chosen by the court in question in the exercise of its discretion. It is well established that even unlawful administrative decisions may have some effect until withdrawn or set aside (e.g. Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 at 342-3, 363; 24 ALR 307 at 314-5, 331). The decision of the first delegate, although unlawful, remained in place until set aside. The date on which that was to occur was within the discretion of the FMCA, having regard to all the circumstances.

41    After referring to the decisions of Full Courts of this Court in Wattmaster Alco Pty Ltd v Button (1986) 13 FCR 253 and Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1; [2003] FCAFC 288, the primary judge concluded (at [32]):

I consider that I am bound to conclude that it was open to the FMCA to select a date from which the decision of the first delegate would be set aside and there was no jurisdictional error in setting aside the decision of the first delegate from 8 April 2013.

42    His Honour then turned to the contention about the constraining effect of s 26(3) and (4) of the Act, and found (at [39]) that s 26(3) did not limit the operation of the cancellation power in s 25(2). He stated (at [40]-[42]):

It is clear that s 25(2) is directed to a consideration of the matters referred to in s 21(2)(b), (g) or (h). Cancellation of an earlier approval requires a decision that a specified condition is not satisfied. The possibilities are not exhausted by the matters referred to in s 26(3). Those possibilities are not exhausted even if attention is confined to s 25(2)(b)(iii) [cancellation on the grounds a person is not of good character].

It is possible that, in a given case, s 26(3) and s 25(2) might each be relied upon. A determination under s 26(3) might delay an applicant making the pledge of commitment and a delegate might later make a decision under s 25(2)(b). That is not what occurred in the present case and the existence of that possibility does not govern the operation of s 25(2)(b). Whether or not s 26(3) is available and whether or not s 26(3) is used, cancellation of approval under s 25(2)(b) need only satisfy the conditions there stated, not those in s 26(3).

Section 25(1) makes it clear that until a pledge has been made (where that is required by s 20(b) of the Act), it is open to the Minister to cancel an approval on any of the grounds stated in s 25(2)(b). …

THE APPEAL

43    The appellant now appeals to this Court. She was granted leave at the hearing of the appeal to rely on a further amended notice of appeal. The contentions remain the same as those before the trial judge: namely, that s 16(1)(a) of the AD(JR) Act did not authorise the order made by the Federal Magistrates Court, and the cancellation power in s 25(2) is constrained by the operation of s 26(3) and (4). The appellant sought orders in the nature of certiorari giving effect to those contentions, as well as a series of declarations. The declaratory relief sought to undo the chain of decision-making in respect of the appellant and to facilitate her taking the pledge of commitment in accordance with s 27 of the Act. The declarations sought were:

…

(b)     That this Court DECLARE that the decision of a delegate of the Respondent dated 5 July 2010, purporting to cancel the appellant’s approval for Australian citizenship by conferral, is void ab initio.

(c)     Further or alternatively to Order 3(b) above, that this Court DECLARE that the Minister had no power pursuant to the Australian Citizenship Act, 2007, or otherwise to cancel the approval of the appellant’s application for Australian Citizenship, as at a date after the elapse of 12 months from the date of the approval of the appellant’s application for Australian Citizenship, or such time as may have been extended pursuant to s. 26(3) of that Act.

(d)     That this Court DECLARE that the decision of the Minister’s delegate, made on 8 April 2013, purporting to cancel the approval of the Applicant’s application for Australian Citizenship is void and of no effect.

(e)     That this Court DECLARE that the Applicant be entitled to take her pledge of Australian Citizenship pursuant to s. 28 of the Australian Citizenship Act, 2007 forthwith.

…

44    The appellant also sought an order in the nature of mandamus compelling the Minister to “facilitate to the taking her pledge of Australian Citizenship pursuant to s. 28 of the Australian Citizenship Act within 14 days”.

45    The parties each filed written submissions on the appeal and developed those submissions in oral argument. We have considered those submissions and refer to them expressly where necessary in the consideration of the appropriate disposition of the appeal.

CONSIDERATION

Issues on the appeal

46    The appellant’s case rests on two contentions which are cumulative.

47    First, a construction argument about the scope and operation of s 25(2) and (3) of the Act, and the constraint on the exercise of these powers said to be imposed by s 26(3) of the Act. The circumstances in s 26(3) are said to provide the only occasion on which the Minister can lawfully prevent a person with a citizenship approval under s 24 from taking the pledge of commitment. The effect of this contention is that the 5 July 2010 cancellation and the 8 April 2013 cancellation are unlawful, having both been made after delaying the appellant from taking the pledge, in circumstances outside the terms of s 26(3). Once the appellant had an approval under s 24(1) then, subject to an exercise of power under s 26(3) (which there was not), she had a “right” to be permitted to take the pledge under s 27 of the Act.

48    If these contentions are accepted, the appellant then contends the Federal Magistrates Court could not, by order, “impermissibly permit” the Minister to make another decision and bypass the constraints of s 26(3) and (4). Thus, the appellant’s submissions about the scope of the power in s 16(1)(a) of the AD(JR) Act hinge on the success of her principal argument.

The construction of s 26(3) and (4)

49    We do not accept the appellant’s construction of s 26(3) and (4). In our opinion, the primary judge was correct to see these provisions in context as operating in the circumstances which they expressly contemplate, but not as constraining or controlling the cancellation power in s 25 of the Act.

50    There are textual and contextual reasons for this conclusion.

51    The cancellation power in s 25 is not expressed to be subject to s 26. To subordinate the power in s 25 to the occurrence in s 26 requires an implied limit to be placed on s 25 and no satisfactory purpose for doing so has been identified by the appellant.

52    As the appellant submitted, under the predecessor Australian Citizenship Act 1948 (Cth), there was no requirement for the Minister to make a decision, such that citizenship applications might be left undecided without any capacity for applicants to require the Minister to make a decision. In contrast, s 24 now imposes a duty on the Minister to either grant or refuse a citizenship approval. Whether or not this is appropriately described as “protective” of applicants, like s 65 of the Migration Act 1958 (Cth) (the Migration Act), it does make the matters set out in s 24(1A), (3), (4), (4A), (5), (6) and (7) preconditions going to the jurisdiction of the Minister to grant or refuse approval.

53    It is also clear, as the appellant submitted, that Parliament intended to give the Minister a power to cancel an approval which can be exercised in a broader range of circumstances than the power to revoke a person’s citizenship under s 34. Given the otherwise enduring nature of citizenship, and the status and benefits it confers on an individual, it is hardly surprising that Parliament saw fit to place considerable restrictions around the circumstances in which a person might lose her or his citizenship once granted. The narrowness and nature of those restrictions do not, in our opinion, say anything about the scope and operation of the cancellation provisions in s 25.

54    The structure of Div 2 is such that it provides several stages at which a person may be denied citizenship. First, there are the eligibility criteria in ss 21 and 22. These are complex, and within these criteria exist discretionary powers for the criteria to be waived or modified: see, for example, s 22(4A), (5) and (5A). Section 21 provides for several categories of applicants who need only meet modified eligibility criteria because of disabilities: see s 21(3) and (4). Persons born in Papua are also given separate criteria (s 21(7)). In each of these cases, one of the matters about which the Minister must be satisfied before a person is eligible is that the person “is of good character at the time of the Minister’s decision on the application”.

55    Second, by reason of s 24(2), the Minister may refuse to approve a person who meets the eligibility criteria, including the good character requirement. This discretion is not expressly conditioned by any considerations. It is illustrative of the highly discretionary and staged nature of the process.

56    An otherwise eligible person, and a person to whom the Minister has decided (as a matter of discretion) not to refuse approval under s 24(2), may nevertheless be precluded from gaining approval because she or he becomes subject to proceedings for an offence against Australian law: see s 24(6)(a). This subsection will apply even if a person was not subject to any such proceedings at the time of application, or at the time she or he was assessed as eligible for approval. Nevertheless, new and intervening proceedings against that person will put a halt – at least during the currency of those proceedings and until their final determination – to that person securing an approval from the Minister. Provisions such as this illustrate the scheme is intended to operate in a fluid way, changing a person’s access to an approval, adversely to that person, as events occur which Parliament has either identified expressly as impacting on whether a person should be able to become a citizen, or Parliament has left to the repository of the power to decide whether those changed events should have such an impact.

57    The placement of s 25 in the scheme indicates Parliament’s intention to afford a further opportunity, prior to a person taking the pledge of commitment, for the Executive to deny a person citizenship. The first of the two preconditions in s 25(1), combined with the much narrower criteria in s 34 for revocation after citizenship is granted, reveals a legislative intention that reconsideration of an approval be available on broader grounds.

58    Section 25(1), to be read with s 25(2) and (3), is designed to empower the Minister to revisit the citizenship approval previously granted. Relevantly, s 25(1)(b), read with s 25(2), is designed to empower the Minister to revisit a person’s satisfaction of the eligibility criteria, presumably because of the receipt of new or different information, or to correct administrative error in the approval process. The first two circumstances in s 25(2)(b) (continuing permanent residence status, and factual residence in Australia) are clearly matters which could have changed in the interim period between an approval being secured and arrangements being made for a person to take the pledge of commitment. For example, a person could have had her or his permanent resident visa cancelled.

59    The third matter (and the one relied on by both delegates in respect of the appellant) – whether at the time the Minister proposes to cancel the approval the Minister is satisfied the person is not of good character – is also a criterion which allows for changes of circumstances in between the granting of an approval and a person in fact taking the pledge of commitment. There may be a genuine change of circumstances, for example, prosecution for a criminal offence, or there may be new information available to the Minister, or an error in the way material was considered at the time of the grant of approval may have come to light. It seems to us the text and context of the provision do not suggest any narrow approach should be taken to the circumstances which might give rise to a reconsideration of the “good character” of a person holding a citizenship approval. Whether, after full and proper consideration, affording natural justice and determining the matter according to law, the approval is, in fact, cancelled is another question altogether. For the moment, the only concern is how the scheme is intended to operate, not the outcomes which might be delivered on any particular set of facts.

60    Another indication of breadth is that the term “good character” is not defined in the Act. In contrast, in s 501(6) of the Migration Act, there is a comprehensive list of matters which result in a person not passing the “character test” and being exposed to having her or his visa cancelled under the Migration Act. No doubt some of the matters in the eligibility criteria in s 21 of the Act may inform the construction of the term “good character”, but Parliament clearly intended the term to be used in a broad way, and refrained from taking the approach adopted in the Migration Act of giving specific content to a character criterion. This appeal does not raise for consideration the proper construction of the term “good character”, but it is important to note the absence of a definition and, again, the legislative decision to leave room to the repository of the cancellation power to reconsider a range of events and conduct connected with the person who has been granted a citizenship approval.

61    The role of s 25(3) was the subject of some specific submissions on behalf of the appellant. Its purpose is, plainly enough, to ensure that those people who secure a citizenship approval complete the process in a timely manner. The prescribed reasons for a person being able to take more than 12 months to complete this step are set out in reg 7 of the Regulations, which provides:

…

(2)    A person has a prescribed reason for failing to make a pledge of commitment if:

(a)    the person was prevented from making a pledge because the Minister has determined under subsection 26(3) of the Act that the making of the pledge should be delayed for a specified period; and

(b)    either:

(i)    that specified period has not yet ended; or

(ii)    the specified period has ended, but the person has not yet had a reasonable period since the end of the specified period in which to make a pledge.

(3)    Subject to subregulation (5), a person has a prescribed reason for failing to make a pledge of commitment if:

(a)    the person could not make a pledge, either in Australia or at an Australian mission overseas, because during that period, the person was overseas:

(i)    for medical treatment that was not available in Australia; or

(ii)    for a purpose unrelated to medical treatment, and was unexpectedly hospitalised; or

(iii)    to care for a person who was critically ill; or

(iv)    for a funeral and other associated arrangements; and

(b)    either:

(i)    the person still cannot make a pledge for the reason mentioned in paragraph (a); or

(ii)    the person is now able to make a pledge, but the person has not yet had a reasonable period in which to do so.

(4)    Subject to subregulation (5), a person has a prescribed reason for failing to make a pledge of commitment if:

(a)    the person could not make a pledge because of an administrative error or omission made by:

(i)    the Commonwealth, a State or Territory; or

(ii)    an authority of the Commonwealth, a State or Territory; or

(iii)    a local government authority; and

(b)    either:

(i)    the error or omission has not been rectified; or

(ii)    the error or omission has been rectified, but the person has not yet had a reasonable period in which to make a pledge.

(5)    For subregulation (3) or (4), a person has a prescribed reason only if the person gives the Minister:

(a)    a signed statement to support the claim that includes a description of any effort that the person made to make a pledge of commitment within the relevant period; and

(b)    written evidence that supports the statement.

…

62    The appellant submitted that the 12 month period specified in s 25(3) affected the construction of the power in s 25(2). She submitted that the existence of the 12 month period meant that the power in s 25(2) to cancel for non-satisfaction of any of the three eligibility grounds there specified was not available for exercise 12 months after a citizenship approval was granted. Once 12 months had passed, the only cancellation power available to the Minister was the power in s 25(3).

63    We do not accept this is the proper construction of s 25(2) and (3), nor of their relationship in the context of the Act. By s 25(1), and on the condition that a person has not taken the pledge of commitment, the Minister is authorised to cancel a citizenship approval in circumstances which are, by the use of the word “either”, intended to be true alternatives. On exercise of the power, cancellation is an event with complete effect. Parliament intended that effect to be able to occur in two quite different ways. One way is, as we have described it, where the repository of the power is to be given an opportunity for reconsideration, on the premise that changes in circumstances or information may have affected the desirability, on the merits, of a person being able to acquire Australian citizenship.

64    The other way (s 25(3)) is where the person to whom a citizenship approval has been granted has failed or neglected to take the second and critical step to perfect her or his status as a citizen: namely, taking the pledge of commitment. In a sense, this provision recognises that, by granting an approval (and there being no adverse reconsideration), an individual has been offered the opportunity for Australian citizenship and the Legislature expects (subject to the range of reasons set out in the Regulations and justifying a longer period) the person will either act reasonably promptly to take up that offer, or the offer may be withdrawn through the cancellation of the citizenship approval.

65    There is no basis in the text or context of the provision to construe s 25(2) as limited in the manner suggested. Indeed, if there was a constraint it would need to be implied not into s 25(2) but into s 25(1), which is the provision conferring the discretion to cancel. Once that is appreciated, the manner in which s 25(1) is expressed makes it as clear as it could be that the two ways in which an approval may be cancelled are to operate as alternatives, independently of each other. Indeed, there would be nothing preventing the Minister considering a cancellation under s 25(1) based on the matters in s 25(2), and deciding not to cancel the approval, but subsequently on discovering the person had not taken the pledge after 12 months had elapsed, cancelling the approval in that way.

66    Nor do we accept the appellant’s construction of s 26(3). Section 26(1) imposes a duty on a person to make a pledge of commitment to become an Australian citizen, subject to specified exceptions relating to age, physical or intellectual disabilities, or the matters covered in s 21(6), (7) and (8). That the pledge is conditional upon an approval under s 24 being in force is demonstrated by the terms of the prohibition in s 26(2).

67    Section 26(3) empowers the Minister to prevent a person from performing the duty imposed by s 26(1), by the making of a determination. The purpose of the determination is to place the citizenship process on hold while either of two other processes occurs. Both of those processes (possible cancellation of a visa under the Migration Act and possible charging of a person with an offence under Australian law) may lead to a person no longer meeting the eligibility criteria in s 21(2) or may lead to a person falling within the disqualification criteria set out in s 24(6). They may thus lead to reconsideration of the approval and possible cancellation under s 25(1), read with s 25(2)(b)(iii). Each of them depends on decision-making processes outside the Act. The qualification in s 26(3)(a) that a person need not have been given notice of an impending cancellation suggests s 26(3) is intended to have something of a pre-emptive operation. This is consistent with the broader context of Div 2 which is structured so as to give the Minister a range of opportunities to prevent a person becoming an Australian citizen.

68    There is no basis to construe s 26(3) as constraining the cancellation power in s 25(1). Nothing in the text or context of the two provisions suggests there is even a necessary connection between them, and certainly not one which would lead to an implied time constraint on the power in s 25(1). Section 26(3) allows for a determination to be made before the Minister knows whether a person’s visa will be cancelled, or whether a person will be charged with an offence: it contemplates the Minister, on information available, being able to act pre-emptively to place the citizenship process on hold. Despite an exercise of power under s 26(3), there is no inevitability about consideration of cancellation under s 25(2). Neither of the anticipated events in s 26(3) may materialise and in that case there may be no impediment to a person taking the pledge. There was a tendency in the appellant’s construction arguments to proceed on the basis that all powers would always be exercised adversely to the individual concerned. That is not an appropriate approach to the construction of discretionary powers.

69    There are two further difficulties with the appellant’s submissions. First, what underlies the appellant’s submissions is an assumption that what occurred between May 2009 and July 2010 – wholly inappropriate as it was – was a positive decision to “delay” the appellant taking the pledge. The appellant then contends there was no power to make such a decision to “delay”, the only power to make such a decision residing in s 26(3), which must be exercised according to its terms. If this is the appellant’s contention, it is apparent she has not sought to challenge that decision or conduct, assuming she could have done so under the Judiciary Act 1903 (Cth). If she had, the relief which should flow if she were successful might have been difficult to formulate. Having chosen however to challenge the ultimate cancellation decision of July 2010, she must relevantly show that the power under s 25(1) could not be exercised at the time at which it was exercised – namely, over 13 months after the approval was granted. For the reasons we have set out above, we do not accept the power in s 25(1) is limited in that way.

70    Second, contrary to the appellant’s submission, the principles in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 are not applicable. In Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32 (Malaysian Declaration Case), the Court noted the principle of construction to be taken from that case can be expressed a number of different ways: at [84] per Gummow, Hayne, Crennan and Bell JJ. Citing a passage from Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50 at [59], the Court identified the “central question” as whether the statute “confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power”.

71    Anthony Hordern concerned the construction of an industrial award made by the Court of Conciliation and Arbitration. The award required employers to give preference to employing female members of the union, with the obligation slightly differently expressed as between employers with less than 50 “operatives” and those with more. In substance, the obligation on employers with less than 50 operatives to employ female unionists was absolute, and if the employer had more than 50 operatives such unionists should be employed, “other things being equal”. Section 40(1)(a) of the Commonwealth Conciliation and Arbitration Act 1904-1930 (Cth) provided:

The Court, or a Conciliation Commissioner by its or his award, or by order made on the application of any organization or person bound by the award, may—(a) direct that, as between members of organizations of employers or employees and other persons (not being sons or daughters of employers) offering or desiring service or employment at the same time, preference shall, in such manner as is specified in the award or order, be given to such members, other things being equal.

72    Three members of the Court found that the order made by the Court of Conciliation and Arbitration went beyond the terms of s 40(1)(a) because, amongst other things, it compelled employers with less than 50 employees to give preference when the statute authorised only a qualified preference to be given (“other things being equal”). Gavan Duffy CJ and Dixon J said (at 7):

Extensive and unfettered as the authority of the Court of Conciliation and Arbitration to award preference in settlement of a dispute might have been in virtue of its general power, yet, when sec. 40 expressly gives a special power, subject to limitations and qualifications, surely it must be understood to mean that the Court shall not exercise an unqualified power to do the same thing. When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.

73    The first difficulty we identified at [69] above infects the application of Anthony Hordern. The “power” said by the appellant to be given explicitly by a particular provision is the “delay” power in s 26(3). On this argument, any more general powers in the Act (or, perhaps more accurately, in Div 2) should be construed as excluded. As some of the ways of expressing this principle have recognised (see, for example, R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529 (Wool Stores Case) at 550, 553 per Dixon J), the principle’s sphere of operation concerns two legislative provisions dealing with the “same matter”. In Nystrom, the Court found the subject matter of the power in law was not the same as between the two provisions in issue, even if one of the consequences of the exercise of each of the powers was (at [60]-[61] per Gummow and Hayne JJ; at [162]-[166] per Heydon and Crennan JJ, Gleeson CJ agreeing).

74    The subject matter of the power in s 26(3) is a discretionary and temporary stay on an applicant’s obligation imposed by s 26(1) to take the pledge of commitment. The subject matter of the power in s 25(1) is the discretionary cancellation of a citizenship approval given under s 24(1), the exercise of that discretion not being constrained, as we have found, by any express or implied time limit, but rather being constrained only by the requirement to be exercised prior to a person making the pledge of commitment. Section 25(1) is not a “general power” in the sense that term is used in Anthony Hordern. Rather, it is a power with a different subject matter in law to the power in s 26(3).

The Federal Magistrates Court’s orders under the AD(JR) Act

75    The appellant’s contention is that there was no power in the Federal Magistrates Court to make orders under s 16(1)(a) of the AD(JR) Act which had the effect of preserving the validity of the 5 July 2010 cancellation decision, for a period of several months. This contention is premised on the proposition that, if the 5 July 2010 cancellation decision was affected by the kind of error alleged, the decision would have been made without jurisdiction. The latter proposition is clearly correct. If the appellant were correct to contend that s 25 did not authorise the making of the 5 July 2010 cancellation decision, this would be an error that went to the jurisdiction of the Minister’s delegate.

76    We need not determine the merits of the appellant’s contention about s 16(1)(a) of the AD(JR) Act because, for the reasons set out above, we do not accept its premise. The 5 July 2010 decision was authorised by s 25 of the Act and the appellant is not entitled to a declaration that the 5 July 2010 cancellation decision was, to use the language in the further amended notice of appeal, “void ab initio” for want of authorisation by s 25. There is no basis for an order in the nature of certiorari against the Federal Magistrates Court. The appellant made no argument, independently of the ground advanced about s 25, that the orders of the Federal Magistrates Court should be quashed for lack of power in s 16(1)(a) of the AD(JR) Act. That is no doubt because, time having passed and the second cancellation decision having been made, any order of this Court simply altering the date at which the 5 July 2010 cancellation decision is set aside would not, in and of itself, assist the appellant.

77    Had it been necessary to determine the scope of s 16(1)(a), we consider it is arguable that, in empowering the Court to fix a date which is earlier, or later, than the date of the Court’s judgment, s 16(1)(a) does not authorise the Court to fix a date which preserves a decision it has found to be unlawful, especially where the error identified is of a jurisdictional kind. We do not consider Wattmaster or Jadwan are determinative on this point. However, fuller consideration of that issue should be left for a case in which the issue must be decided.

Conclusion

78    There is no error in the conclusions reached by the learned primary judge. The appeal should be dismissed.

79    The circumstances which have brought this matter before the Court and, in particular, the misconduct within the Department may potentially have cost consequences upon which the appellant should be heard. The appellant should file and serve written submissions on the issue of costs within 7 days of the date hereof and the respondents should do so within a further 7 days. Neither submission should exceed 5 pages.

Associate:

Dated:    27 March 2015