FEDERAL COURT OF AUSTRALIA

Shams v Minister for Immigration and Citizenship [2011] FCA 1505

THE COURT ORDERS THAT:

1.    The Application be dismissed.

2.    The Appellant pay the Respondents’ costs of the Application as agreed or assessed.

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

REASONS FOR JUDGMENT

Introduction

1    This is an appeal from the Administrative Appeals Tribunal (the “Tribunal”) on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The Tribunal affirmed a decision of a delegate of the Minister not to approve the appellant becoming an Australian citizen: Shams and Minister for Immigration and Citizenship [2011] AATA 675 (the “Tribunal Decision”).

2    The appellant is a young Bangladeshi woman. She was 17 years old when she applied to the Minister under s 21(1) of the Australian Citizenship Act 2007 (Cth) (the “Act”) to become an Australian citizen. The appellant satisfied the relevant eligibility requirement to become an Australian citizen, as stated in s 21(5) of the Act, but the delegate and the Tribunal refused her application on discretionary grounds.

3    The discretionary grounds upon which the Tribunal relied in refusing to approve the appellant becoming a citizen were stated in the Policy Guidelines set out in the Australian Citizenship Instructions (“ACI”) published by the Minister.

4    The Policy Guidelines included a requirement that an applicant satisfy “the residence requirement” stated in s 22 of the Act. The appellant did not satisfy that requirement even though she was a permanent resident of Australia. This was because, shortly after she arrived in Australia with her parents, she returned to Bangladesh to care for her elderly grandmother who suffers from a chronic heart condition.

5    Thus, the appellant was not physically present in Australia for the period required to comply with the residency requirement.

6    The appellant contends that upon the proper construction of the Act, the Minister (or the Tribunal as the decision-maker) was not entitled to have regard to the residence requirement in exercising the discretion to approve, or to refuse to approve, the application.

7    The effect of the submissions made by counsel for the appellant is that, unlike some of the other categories for eligibility for citizenship stated in s 21 of the Act, the conditions which apply to a person under the age of 18 do not incorporate a general residence requirement. Counsel for the appellant submitted that it must follow that it is not open to the decision-maker to impose a residency requirement by relying on the Policy Guidelines stated in the ACI.

8    The question which arises is one of statutory construction, in particular the provisions of ss 21 and 24 of the Act. Section 24(1) confers a discretion on the Minister to “approve” or to “refuse to approve” an application for citizenship. Of particular significance is s 24(2) which empowers the Minister to refuse to approve an applicant despite the applicant being eligible to become a citizen under the eligibility requirements stated in s 21.

9    Section 24(2) of the Act appears to point against the construction relied upon by the appellant but counsel for the Minister did not confine his submissions to a mere consideration of the construction and effect of s 24(2). Rather, he submitted that the question of construction is one of the provisions of ss 21 and 24 in their full context in the Act, bearing in mind also the legislative history of s 21 and s 24 as well as the Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth).

10    Counsel for the Minister relies upon a decision of Marshall J in Singh v Minister for Immigration and Citizenship [2011] FCA 685 which appears to favour the construction for which the Minister contends. The Tribunal had regard to that decision but counsel for the appellant submits that I ought not to follow it because he contends that the decision is plainly wrong.

The Act

11    The Act replaces the Australian Citizenship Act 1948 (Cth) (“the 1948 Act”) to which I will refer later.

12    The relevant parts of the Act for present purposes are contained in Part 2 which is headed “Australian Citizenship”. Part 2 is divided into a number of Divisions, of which Division 1, Division 2 and Division 3 are relevant to this appeal.

13    Part 2 of the Act deals in particular with the way in which a person acquires, or ceases to hold, Australian citizenship. Division 1 deals with automatic acquisition of Australian citizenship; the most obvious example of this is citizenship by birth which is addressed in s 12.

14    Division 2 of Part 2 deals with acquisition of Australian citizenship by application. The usual way in which citizenship is acquired is “citizenship by conferral” which is the subject matter of subdivision B of Division 2, Part 2. Sections 21 and 24 are both contained in subdivision B.

15    Subdivision B commences with s 19G which contains a simplified outline of the Subdivision. It states that a person may be eligible to become an Australian citizenship in seven situations which are set out in s 21. Section 19G includes the following statement:

You must be eligible to be an Australian citizen to be approved. You may be refused citizenship even if you are eligible.

16    Section 20 states that a person becomes an Australian citizen if the Minister decides under s 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.

17    Section 21(1) provides that a person may make an application to the Minister to become an Australian citizen. The section then goes on to set out the seven different categories of eligibility and the tests which are applicable to each of those categories.

18    The first category is described as “general eligibility” and applies to persons over the age of 18 at the time of the application. This category and the matters in respect of which the Minister must be satisfied in order for the applicant to be eligible are set out in s 21(2).

19    The matters, or tests, stated in s 21(2) include the requirement that the applicant be a permanent resident and that he or she satisfies the “general residence requirement” stated in s 22. The tests also include the requirements stated in s 21(2)(d), (e) and (f), namely that the person:

    understands the nature of an application under s 21(1);

    possesses a basic knowledge of the English language;

    has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.

20    The other categories of eligibility each mould the tests which must be satisfied to meet the characteristics of the particular category. Thus, for example, the category of “permanent or enduring physical or mental incapacity” stated in s 21(3) includes the requirement of being a permanent resident and the general residence requirement but it excludes the matters stated in s 21(2) (d), (e) and (f). It does so by providing in s 21(3)(d) that the Minister is to be satisfied that the person is not capable of:

    understanding the nature of the application; or

    demonstrating a basic knowledge of the English language; or

    demonstrating an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship.

21    Section 21(5) addresses the category of persons under the age of 18. It states that a person is eligible to become an Australian citizen if the Minister is satisfied that the person is 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.”

22    The other categories of eligibility are persons aged 60 or over, or persons aged 18 or over who suffer from a hearing, speech or sight impairment (s 21(4)), persons born to a parent who has ceased to be an Australian citizen (s 21(6)), persons born in Papua before it achieved independence on 16 September 1975 (s 21(7)), and stateless persons. (s 21 (8)).

23    Of the seven categories of eligibility stated above, only those specified in s 21(2), s 21(3) and s 21(4) incorporate the general residence requirement stated in s 22.

24    Section 22 provides, relevantly, that the requirement is satisfied if the person was present in Australia for four years immediately before the day the person made the application for citizenship, and the person was present in Australia as a permanent resident for 12 months immediately before that day.

25    Section 24(1) states:

(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.

26     Section 24(2) states:

 (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).

27    Reference to s 21(8) was removed from s 24(2) by the Migration Legislation Amendment Act (No 1) 2008 (Cth) Schedule 5, item 12, in order that the Act operate consistently with Australia’s obligations under the United Nations Convention on the Reduction of Statelessness 1961 (opened for signature 30 August 1961, entered into force 13 December 1975).

28    There are a number of circumstances specified in s 24 in which the Minister must not approve the person becoming an Australian citizen. The circumstances include an adverse national security assessment (s 24(4)) and where the person has been confined in prison in Australia for a criminal offence or offences, (s 21(6)).

29    Section 26 of the Act provides for a person who makes an application for citizenship under s 21 to make a pledge of commitment to become an Australian citizen. The pledge is to be made after the Minister has approved the application: see s 26(2).

30    Persons under the age of 16 at the time of the application and persons who have a permanent or enduring physical or mental incapacity are not required to make a pledge of commitment: see ss 26(1)(a) and (b).

31    A pledge of commitment is to be in accordance with either of the forms set out in Schedule 1: see s 27(1). The forms require a pledge of loyalty to Australia and its people.

32    Division 3 of Part 2 deals with cessation of Australian citizenship. It specifies the ways in which a person can cease to be an Australian citizen. Section 34(2) specifies one such way, which is applicable to citizenship acquired by conferral under Subdivision B of Division 2.

33    Section 34(2) empowers the Minister to revoke a citizenship acquired under Subdivision B of Division 2 in a number of specified circumstances. They include the person having been convicted of a serious criminal offence.

The 1948 Act

34    The 1948 Act rolled up, in one lengthy section, the Minister’s discretion to grant Australian citizenship and the conditions which were required to be satisfied for the exercise of the discretion.

35    The discretion, and the conditions for its exercise, were contained in s 13 of the 1948 Act. Section 13(1) provided that, subject to certain exceptions, the Minister may, in the Minister’s discretion, upon application in the approved form, grant a certificate of Australian citizenship to a person who satisfied the Minister of certain facts and matters which correspond, largely, to the conditions for eligibility now contained in s 21(2) of the Act.

36    The conditions stated in s 13(1) of the 1948 Act were set out in a number of paragraphs. They included the requirement that the person had attained the age of 18 years, that he or she was a permanent resident, and that the person had been resident in Australia for certain minimum periods.

37    The conditions stated in s 13(1) also included conditions which correspond to s 21(2)(d)–(f) of the Act, namely that the person was required to understand the nature of the application, possess a basic knowledge of the English language and have an adequate knowledge of the responsibilities and privileges of Australian citizenship: see 1948 Act, s 13(1).

38    Section 13(9) of the 1948 Act dealt with applications for citizenship made by persons under the age of 18 years. That subsection conferred a discretion on the Minister to grant a certificate of Australian citizenship to such a person. Section 13(9) did not stipulate any residence requirement.

39    The 1948 Act drew a distinction between applications for citizenship by persons under the age of 18 and applications by persons under 16. The latter were addressed in s 13(9B) which provided for the Minister to have a discretion to grant a certificate of citizenship to a child if, at the time of the application the child was under 16 and a responsible parent of the child was an Australian citizen because of the operation of s 15.

40    Section 15 of the 1948 Act was the predecessor of s 26 of the Act. It was the “pledge” provision. Though not expressed in the same mandatory terms of s 26 of the Act, it was to the same effect. Section 15 provided for a person to whom a certificate of citizenship was granted to become an Australian citizen by making a pledge of commitment,

41    No pledge was required under s 15 of the 1948 Act by persons under the age of 16 or by a person who suffered from a physical or mental incapacity.

The ACI Policy Guidelines

42    The Policy Guidelines contained in the ACI distinguish between applicants aged 16 or 17 years and those under the age of 16.

43    Applicants aged 16 and over and under the age of 18 “would usually be approved” under s 24 of the Act if they are permanent residents and meet a number of stipulated policy guidelines. Those guidelines reflect the terms of s 21(2) of the Act, that is to say, the eligibility conditions for adults. They include the need to satisfy the residence requirements and to understand the nature of an application as well as to possess a basic knowledge of the English language and an adequate knowledge of the responsibilities of citizenship.

44    The guideline that an applicant 16 or 17 years satisfy the residence requirement is subject to an exception. The residence requirement need not be met where it would cause “significant hardship or disadvantage”.

45    The Policy Guidelines state that children under the age of 16 would usually be approved if they are permanent residents and meet the stipulated guidelines. The stated guidelines include being with a responsible parent who is an Australian citizen and consents to the application.

The Tribunal’s Decision

46    The Tribunal was of the view that upon its proper construction, s 21(5) of the Act did not incorporate a general residence requirement. It considered, nevertheless, that the Tribunal retained a general discretion not to approve an application under s 24(2): see Tribunal Decision at [8]–[9].

47    The Tribunal referred to the decision of Marshall J in Singh. That decision (though made in respect of an earlier version of s 21(5) of the Act) was authority for the proposition that it was open to a decision-maker dealing with an applicant who was eligible under s 21(5), to have regard to the Policy Guidelines under the ACI in exercising the discretion under s 24.

48    That approach is consistent with the Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth), to which the Tribunal referred.

49    The Tribunal considered that the circumstances of the case did not warrant a departure from the residence requirement stated in the ACI Policy Guidelines. The Tribunal was not persuaded that the applicant would suffer significant hardship and disadvantage if she were not granted citizenship: see Tribunal Decision at [17]–[18] and [22].

Consideration

50    The substance of the submissions made by counsel for the appellant was that upon its proper construction, s 21(5) excluded the need to satisfy the general residence requirement stated in s 22 and that it was therefore not open to the Tribunal to have regard to the residence requirement stated in the Policy Guidelines while exercising the discretion contained in s 24.

51    It is true that the residence requirement is not one of the conditions of eligibility stated in s 21(5) for applicants aged under 18 years. However, eligibility for citizenship is only one of the steps prescribed for conferral of citizenship under the scheme contained in Part 2, Division 2, Subdivision B of the Act.

52    In my view, the approach to construction proposed by the appellant would be contrary to the terms of the scheme contained in the Act considered as a whole. This is clear in my opinion from the express terms of the Act considered in it full context.

53    As counsel for the Minister submitted, the scheme appears in the provisions of the Act to which I have referred, and the context includes the legislative history gleaned from the 1948 Act and the Explanatory Memorandum to the Bill.

54    The critical provision in Subdivision B is s 24(1). It confers a discretion on the Minister to “approve” or to “refuse to approve” an application by a person to become an Australian citizen.

55    There are a number of express restrictions on the exercise of the power by the Minister. But apart from those restrictions, the exercise of the discretion is unconfined, except insofar as there may be found in the subject matter, scope and purpose of the Act some implied limitation on the factors to which the decision-maker may legitimately have regard: Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 40 (Mason J)

56    The scope and purpose of the Act may be seen in particular from the provisions of Part 2 which deal with citizenship and the ways in which it may be acquired or lost. What can be seen from this is that the essential requirements for acquisition of citizenship include a communal relationship with Australia. This can be seen in each of the ways in which a person acquires Australian citizenship, whether automatically, by birth or by conferral under Subdivision B.

57    The communal relationship is recognised in the Preamble to the Act which refers to full and formal membership of the community. Where citizenship is conferred, the preamble states that persons upon whom citizenship is conferred enjoy their rights and undertake to accept their obligations by, inter alia, pledging loyalty to Australia and its people. The pledge is the fourth and final step in the acquisition of citizenship by conferral under subdivision B.

58    The first step is for a person to make an application to become a citizen: s 21(1).

59    The second step is for the Minister to be satisfied that the relevant conditions of eligibility stated in the various categories prescribed in s 21(2), (3), (4), (5), (6), (7) or (8) is satisfied.

60    The third step is for the Minister to exercise the discretion contained in s 24(1) to approve or to refuse to approve the person becoming an Australian citizen.

61    The fourth step is for the person to make a pledge of commitment: see s 26. It is clear from s 20 and s 26(2) of the Act that a person does not become an Australian citizen until he or she makes the pledge.

62    It is plain from this elaboration of the scheme that the eligibility conditions stated in s 21 do not confine the exercise of the discretion to approve or to refuse to approve under s 24(1). So much is stated in explicit terms in s 24(2). Also, the four step nature of the scheme shows that the discretion to approve or not to approve takes into account the nature of citizenship which is embraced in the entirety of the process of acquiring by way of conferral, the status of Australian citizenship.

63    That status is only conferred when an applicant has taken the pledge of commitment after the Minister’s favourable exercise of the discretion to approve the application.

64    The pledge incorporates the concept of a communal relationship with Australia. That relationship is bound up with a pledge of loyalty and a statement of shared beliefs and respect for Australia’s rights and liberties. The scope and purpose of the scheme is wide. There is nothing in it which suggests that the discretion is confined by a mere consideration of the conditions for eligibility.

65    Indeed, it extends to a consideration of all the factors which bear upon the willingness and ability of a person to become an Australian citizen. One of those factors is the question of whether the person has been a resident of Australia for a specified period.

66    This approach to construction is reinforced by a consideration of the 1948 Act. It is part of the context in which the Act is to be construed.

67    The 1948 Act rolled up in ss 13 and 15 the same four stages of the process of the grant of Australian citizenship as are now found in the provisions of Subdivision B of Division 2 in Part 2 of the Act.

68    Section 13 required an application, the satisfaction of the stated condition and the exercise of the Minister’s discretion. The pledge was required by s 15 of the 1948 Act. Section 15 of the 1948 Act made it plain that the status of Australian citizenship was conferred only when the person made a pledge.

69    Thus, the exercise of the discretion by the Minister under the 1948 Act was, as in the case of the Act, not confined by a mere consideration of whether the conditions of eligibility were satisfied.

70    The position is even clearer under the Act than it was under the 1948 Act. This is because s 24(2) of the Act makes it plain that the discretion is not so confined.

71    The terms of s 24(2) of the Act and the separation of the categories of eligibility into separate sections, rather than by way of a rolled up statement of the first three steps in the scheme as they appeared in the 1948 Act make it clear that in exercising the discretion, the Minister is not to look at the discretion in a narrow way. As I have said, it is a broad one which encompasses all of the scope and purpose of the Act as found in the expression of the statutory scheme.

72    Moreover, the Explanatory Memorandum to the Bill is part of the context in which the Act is to be construed. It is part of the modern approach to statutory construction to have regard to this form of extrinsic material: CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ).

73    The Explanatory Memorandum, as revised in the Revised Explanatory Memorandum to the Bill, states that s 21(5) is the equivalent of s 13(9)(a) of the 1948 Act. It goes on to state:

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

74    Marshall J in Singh recognised the role of s 24(2) of the Act in the proper construction of the scope of the discretion conferred on the Minister to approve or to refuse to approve an application.

75    Section 21(5) as it stood when Singh was before Marshall J did not include as a condition of eligibility that the person be a permanent resident. The sub-section stated that a person was eligible to become an Australian citizen if the Minister was satisfied that the person was aged under 18 at the time the person made the application.

76    Nothing turns on this difference because the issue which Marshall J addressed was whether the Minister was entitled to take into account, in the exercise of the discretion, the fact that the applicant did not have permanent resident status. His Honour held that the Minister was entitled to take it into account, notwithstanding that permanent resident status was not a condition of eligibility.

77    The issue in Singh was therefore parallel to the issue which arises in the present matter. That is to say, is the Minister permitted to consider in the exercise of the discretion a matter which is not a condition of eligibility but which is referred to in the ACI Policy Guidelines as a factor to be taken into account in the decision whether or not to approve an application.

78    Marshall J considered that the Policy Guidelines in the ACI were policy considerations which the Explanatory Memorandum suggested were appropriate matters to take into account in the exercise of the discretion. They do not control the way in which the discretion is to be exercised but provide guidance. He held that they are not ultra vires : see Singh at [12].

79    In coming to that conclusion, Marshall J had regard to the Explanatory Memorandum as part of the context in which ss 21(5) and 24(1) are to be considered. There is nothing impermissible in this approach. The construction arrived at by his Honour was not wrong, let alone plainly wrong as contended by counsel for the appellant in the present case.

80    Indeed, in my respectful view, the proper construction of s 21(5) and s 24(1) in their full statutory context, as I have endeavoured to approach the matter, shows that the construction adopted by Marshall J was correct.

Conclusion

81    The appeal must be dismissed with costs.

Associate:

Dated:    22 December 2011