FEDERAL COURT OF AUSTRALIA

G v Minister for Immigration and Border Protection [2018] FCA 1229

ORDERS

THE COURT ORDERS THAT:

1.    On or before 4 pm on 31 August 2018 the parties submit a joint proposed set of orders.

2.    In the absence of any agreed orders, on or before 4 pm on 14 September 2018, the parties file proposed orders and submissions (not exceeding 5 pages).

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

REASONS FOR JUDGMENT

MORTIMER J:

1    This is an application for judicial review of a decision by the Administrative Appeals Tribunal to refuse approval for the applicant’s application for Australian citizenship. The applicant invokes this Court’s jurisdiction under both the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth). That the Court has jurisdiction under the AD(JR) Act is not insignificant to the resolution of some of the grounds of review.

2    The applicant was eight years old at the time of the hearing of this proceeding. He brings this proceeding through his litigation representative, who is his mother.

3    For the reasons given below, there will be orders setting aside the decision of the Tribunal, and remitting the matter for determination according to law. Given the conclusions I have reached on ground 2, declaratory relief may also be appropriate, but the Court will hear the parties on that matter, and on the precise form of orders.

The use of a pseudonym

4    The applicant correctly submitted it was doubtful that s 91X of the Migration Act 1958 (Cth) applied to this proceeding, because the subject matter of this proceeding does not directly concern the applicant in his capacity as a person who applied for a protection visa.

5    As an alternative, at the hearing of this application the applicant sought orders pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth). I considered it was in the interests of the administration of justice that orders should be made prohibiting publication of the identity of the applicant. Orders giving effect to that conclusion were made, including an order that the name of the applicant be substituted by the pseudonym “G” in the originating application and in all previous orders. The orders made today, and these reasons, will accordingly refer to the applicant as “G”. The applicant is a young child, and has a disability. The reasons will set out some of his personal and family difficulties. An understanding of the public law issues in this case is not advanced by the publication of his identity, and it would constitute a substantial intrusion into the privacy of his family’s circumstances. Further, his parents’ migration status in Australia remains precarious and it is by no means impossible that, even if he were to succeed in this application and to succeed in his citizenship application, he would nevertheless be forced to return to Albania with his parents in the foreseeable future. He has been found by the Refugee Review Tribunal to be at risk of significant harm if he were to return to Albania. His parents claim to fear harm in Albania. Caution suggests his identity, and the identity of his parents which could be derived from his identification, should not be in the public domain.

Background

6    The applicant was born in Australia. He has a younger brother who was born in Australia in 2011. The applicant 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 from applying again, without a favourable exercise of the Minister’s discretion under s 48B of the Migration Act.

7    The applicant, 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 the applicant 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 the applicant’s family and another family. The Refugee Review Tribunal also made findings about the difficulty for the applicant in accessing health and related services in Albania. The applicant was granted a protection visa in January 2013, following the Refugee Review Tribunal findings.

8    Thus, although the applicant’s claim for protection was in large part based on the circumstances of his parents, only the applicant is the holder of a protection visa.

9    The applicant 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. His father had been held in immigration detention for more than three years. Despite the applicant, his younger brother and his mother all being in Melbourne, the Department of Immigration saw fit to move the father to an immigration detention facility in Darwin in mid-2015. At some stage, he was then moved to Christmas Island, and then to a detention facility in Western Australia where he remained at the hearing of this proceeding. Even assuming these transfer decisions to be lawful, the likely harm and distress imposed on a family by this kind of decision-making should be obvious.

10    At the hearing I asked the Minister’s counsel to seek instructions on the explanation for the detention of the applicant’s father at locations such a long way from his two children and his wife. The Court was informed during the hearing those instructions were being sought. However, no explanation was forthcoming, either at the hearing or after it.

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

12    The applicant’s father applied for a bridging visa, which was refused. Kenny J set aside the refusal on the basis of jurisdictional error: see DEY16 v Minister for Immigration and Border Protection [2016] FCA 1261. By the time of the Tribunal decision with which this proceeding is concerned, there had still been no decision as a result of the remitter by Kenny J.

13    The permanent residence status of the applicant 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, and on 18 August 2015 the applicant sought review of the delegate’s decision in the Tribunal. The Tribunal affirmed the delegate’s decision, and it is that review decision with which this proceeding is concerned.

The relevant parts of the legislative scheme

14    The Preamble to the Australian Citizenship Act 2007 (Cth) 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.

15    Section 2A contains what is described as a “simplified outline” of the Citizenship Act. Not all of the outline is relevant to the applicant’s circumstances. However, the relevant part of the “simplified outline” provides:

Becoming an Australian citizen

There are a range of ways you can become an Australian citizen.

…

The third is citizenship by conferral. Generally, you would need to be a permanent resident and willing to make a pledge of commitment to apply for citizenship by conferral. You may need to successfully complete a citizenship test. There are some less common circumstances in which you can apply for citizenship by conferral. Citizenship by conferral is covered by Subdivision B.

16    Division 2 of Pt 2 deals with citizenship by application. This division covers citizenship by descent from a parent who is an Australian citizen (subdiv A), or by adoption in accordance with the Hague Convention (subdiv AA).

17    Subdivision B is the subdivision applicable to the applicant’s circumstances, and deals with citizenship by conferral. The “simplified outline” in s 19G describes the range of circumstances in which a person might seek Australian citizenship by conferral:

19G Simplified outline

The following is a simplified outline of this Subdivision:

You may be eligible to become an Australian citizen under this Subdivision in 7 situations:

•    you satisfy the general eligibility criteria and have successfully completed a citizenship test: see subsections 21(2) and (2A); or

•    you have a permanent or enduring physical or mental incapacity: see subsection 21(3); or

•    you are aged 60 or over or have a hearing, speech or sight impairment: see subsection 21(4); or

•    you are aged under 18: see subsection 21(5); or

•    you were born to a former Australian citizen: see subsection 21(6); or

•    you were born in Papua: see subsection 21(7); or

•    you are a stateless person: see subsection 21(8).

You must make an application to become an Australian citizen. The Minister must approve or refuse you becoming an Australian citizen.

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

The Minister may be required to refuse your application on grounds relating to:

•    non-satisfaction of identity: see subsection 24(3); or

•    national security: see subsections 24(4) to (4C); or

•    non-presence in Australia: see subsection 24(5); or

•    offences: see subsection 24(6); or

•    cessation of citizenship: see subsection 24(7).

You may need to make a pledge of commitment to become an Australian citizen.

18    Section 20 sets out the two 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.

19    The provisions relating to the making of the pledge of commitment are not relevant to the applicant, because he was under 16 at the time of making his application: see s 26(1)(a).

20    In relation to citizenship by conferral, the legislative scheme establishes two stages in any decision on an application for citizenship. The first stage is to measure an applicant against the eligibility criteria. The eligibility criteria are the gates through which all applicants must pass. If an applicant is eligible, the second stage created by the scheme is for a decision-maker to consider, as a matter of discretion, whether an applicant should be able to become an Australian citizen.

21    The general eligibility criteria for persons over 18 are set out in s 21(2), and include such matters as successful completion of a citizenship test. Other parts of s 21 deal with applicants who have a permanent or enduring mental or physical incapacity (s 21(3)), or who are over 60 years of age, or have hearing, sight or speech impairments (s 21(4)). Other parts of s 21 deal with children of former Australian citizens, people born in Papua and stateless people.

22    Section 21(5) deals with applications by persons under the age of 18 and is the provision relevant to the applicant. It provides:

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.

23    The definition of “permanent resident” is set out in s 5 of the Citizenship Act, but need not be reproduced, as there was no dispute the applicant was within that definition.

24    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. It is not presently relevant, except for the terms of s 22(6) which confer a discretion on the Minister to treat a certain period as a period of residence if 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.

25    Section 22(6) is not of itself relevant, but the concept of significant hardship is one which is picked up in parts of the Citizenship Instructions, which I deal with below.

26    Sections 22A and 22B then deal with other special circumstances in which the usual residence requirements may not need to be met. They, like s 22, are highly prescriptive. Section 22C empowers the Minister to specify, by legislative instrument, activities for the purposes of some of the provisions in s 22A and s 22B which will enable applicants not to have to meet the usual residence requirements. Section 23 provides for particular, truncated, residence requirements if an applicant (or a member of the applicant’s family unit) has completed defence service of the requisite kind.

27    Section 23A is the provision which empowers the Minister to approve a citizenship test, as a core part of the eligibility requirements for citizenship by conferral.

28    Section 24 is a key provision for the applicant’s arguments. It is the provision which confers a general power on the Minister to approve or refuse to approve a person becoming an Australian citizen. It is structured so as to require the Minister to exercise the power one way or the other. It also contains a prohibition on approval in certain circumstances, and confers a discretion to refuse citizenship even in circumstances where a person has met the eligibility criteria. Its text, relevantly, is as follows:

(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).

29    Section 24 then sets out a number of other, specified circumstances in which the Minister is precluded from granting citizenship. They include: where the Minister is not satisfied of a person’s identity, where the person has an adverse security assessment, where other considerations of national security are specified to require refusal, 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 presence of these specific provisions may be relevant to some of the construction arguments in this proceeding.

30    The Minister referred to a description by the Full Court in Grass v Minister for Immigration and Border Protection [2015] FCAFC 44; 231 FCR 128 at [55] about the nature of s 24(2):

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.

31    The Minister submitted this passage assisted his arguments in resisting the grounds of review. To the contrary, I consider it assists the applicant’s arguments (especially on grounds 2 and 3). As the Full Court noted, the legislative intention is that this second stage of the process be highly discretionary, unless the discretion is controlled by any of the specific sub-sections in s 24. However, outside those specific sub-sections, the legislative intention is for a broad discretion to be reposed in the decision-maker, albeit the decision-maker’s task is to decide whether to approve or refuse to approve the application.

32    The scheme then goes on to deal with matters such as previous cessation of citizenship and cancellation of approval which are not relevant to the current application.

Australian Citizenship Instructions

33    In reviewing the delegate’s refusal, the Tribunal applied government policy, as set out in a lengthy document entitled “Australian Citizenship Instructions” (as reissued on 1 July 2014).

34    There is no power conferred by the Citizenship Act to make the Citizenship Instructions. Despite their appearance in form as if they are a legislative instrument or have a statutory source, the Citizenship Instructions are made in an exercise of executive power.

35    Extracts only from the Citizenship Instructions appeared in the court book. Counsel for the Minister helpfully offered to supply a full copy, and what I set out below is taken from the full copy supplied to the Court by the Minister.

36    The Citizenship Instructions are 278 pages, divided into twenty chapters, with approximately 570 numbered and separate sections.

37    The introduction to the Citizenship 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.

38    As I note later in these reasons, these reminders reflect Australian law. One question is whether the Citizenship Instructions actually permit Australian law to operate in the way it is intended to, where there is an unconfined discretion, and also whether decision-makers faced with this policy (such as the Tribunal in the present case) can maintain the appropriate distance from the otherwise mandatory impression the text and structure of the Citizenship Instructions create. More particularly, a central question in this proceeding is whether the Tribunal understood and applied this qualification to the Citizenship Instructions, or instead simply followed the Citizenship Instructions as if they formed a framework constraining its discretionary decision-making function.

39    There is a reference in the introduction to the Citizenship Instructions being part of the “centralised departmental instructions system (CDIS)”. There was no evidence or explanation about what this “system” is. The “owners” of the Citizenship Instructions are said to be: the Citizenship Policy Section, the Citizenship Branch, the Migration and Citizenship Policy Division, and the “National Office”. The latter, going by a footer on the first page of the Citizenship Instructions, appears to be the Department of Immigration and Border Protection (as it was at the time the Citizenship Instructions were written)’s National Office.

40    Each chapter of the Citizenship Instructions deals with a different subject matter, the majority relating to the grant of citizenship. Insofar as the applicant’s grounds of review are concerned, the relevant chapter is Chapter 5, headed “Citizenship by conferral”. Before turning to that chapter, it is necessary to refer to the contents of Chapter 1 – the introductory chapter.

41    Chapter 1 provides some history to the original Citizenship Act – the Australian Citizenship Act 1948 (Cth) – noting that prior to 1948 those born in Australia or naturalised in Australia had the status of British subjects. The chapter then summarises the legislative scheme, which I have set out above, and reproduces substantial parts of the legislation, with cross references to what are described as “policy and procedure” parts of the Citizenship Instructions relating to particular topics.

42    The first part of Ch 5 also summarises the legislative scheme, in relation to citizenship by conferral, although there are aspects of the summary which also move into providing commentary on the legislative provisions, supplying interpretations of statutory phrases and setting out approaches, none of which are derived from the statute itself. For example, section 5.6.2 provides:

5.6.2 Sections 21(2)(d), (e) and (f)

Under s21(2A) the requirements that the applicant ‘understands the nature of the application’, ‘possesses a basic knowledge of the English language’ and ‘has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship’ can only be satisfied by the successful completion of a test. See Chapter 16 - Citizenship test, for further details.

The requirement for applicants for citizenship by conferral to ‘possess a basic knowledge of the English language’ is met if a person has sufficient knowledge of English to be able to exist independently in the wider Australian community.

The requirement to have an ‘adequate knowledge of Australia and of the responsibilities and privileges of Australia citizenship’ is linked to the concepts and information people need to understand in order to make the pledge of commitment.

The Australian citizenship test is designed to assess whether a person has an adequate knowledge of Australia and the responsibilities and privileges of citizenship, and a basic knowledge of the English language.

43    None of what appears in the last three paragraphs is derived from the statute.

44    As the Citizenship Instructions then move to deal with each of the various categories of applicants (persons with a disability, persons over 60 and so on), there are an increasing number of passages not derived from the statute but which are in the nature of advice, or (as the document name suggests) instructions on how to deal with applicants in particular categories.

45    The parts of Ch 5 relevant to the applicant’s grounds of review commence at section 5.12.1. After extracting the terms of s 21(5) of the Citizenship Act, the Citizenship Instructions state:

The discretion in s 24(2) to refuse to approve an applicant becoming an Australian citizen despite being eligible under s 21(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.

(emphasis added)

46    There are several matters to note about this passage. First, it purports to tell decision-makers how to “usually” exercise a discretion in circumstances where the statute does not condition the discretion by any requirement about how it is to be “usually” exercised. Second, a policy that instructs a decision-maker about how to “usually” exercise a statutory discretion, is a policy which imposes a starting premise on a decision-maker that is not contemplated or authorised by the statute. Third, the three matters described as “primary considerations” by the Citizenship Instructions are attended with some difficulty. The language of 5.12.1 is imperative. To say that certain matters “need to be taken into account” is to require or direct the decision-maker to look at these matters. That is a requirement not imposed by the statute.

47    A “legislative requirement”, identified as the first “primary consideration”, is no such thing: it is the source, and the bounds of, a decision-maker’s authority.

48    The identification by the Citizenship Instructions of the best interests of the child as a second “primary consideration” does not have its source in the statute, but would appear to be an executive recognition of the principle that, unless a clear contrary intention is shown, statutory powers are taken to be intended by Parliament to be exercised, so far as their language permits, in conformity and not in conflict with Australia’s international obligations: see Minister for Immigration and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20; 183 CLR 273 at 287-288 (Mason CJ and Deane J) (and the cases there referred to); Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 at [18] (French CJ) (and the cases referred to at footnote 170 by the Chief Justice); CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 [8] (French CJ) and the authorities referred to there by the Chief Justice. Art 3(1) of the United Nations Convention on the Rights of the Child 1989 (being the international convention in issue in Teoh’s case) provides that in all actions concerning children, including by “administrative authorities”, the “best interests of the child shall be a primary consideration”.

49    The third “primary consideration” which decision-makers are directed they “need” to take into account are the policy guidelines themselves. Thus, and despite what appears on the first page of the Citizenship Instructions, decision-makers are in reality directed that they are required to make their decision in the framework set by the policy guidelines.

50    On the best interests of the child consideration, section 5.12.2 then directs decision-makers to an entire section of the Citizenship Instructions devoted to this topic: Ch 18. This Chapter commences by describing its purpose:

This chapter provides guidance on when and how to consider the best interests of a child.

(emphasis added)

51    This is one of the many examples of the contradictory language used throughout the Citizenship Instructions. Decision-makers are told, on the one hand, that there are three “primary considerations”, one of which is the Citizenship Instructions. The Citizenship Instructions convey the impression the Citizenship Instructions and the legislation have equal status, and equal prominence. Decision-makers are told they “need” to take these matters into account. It is said that Ch 18 tells them “when” and “how” to consider the best interests of the child. On any ordinary reading, this language and structure conveys the impression that the Citizenship Instructions are the only source for the “when” and the “how”. The use of the word “guidance” is lost in this language and structure, if “guidance” is intended to convey something less imperative. Of course “guidance” can be suggestive, advisory or imperative, depending on context. Here, in my opinion, it is clearly the latter.

52    Although tempting to work through each of the assertions contained in Ch 18, and measure them for their consistency with Australian law, that exercise is not necessary in order to decide the applicant’s grounds of review. Chapter 18 extracts Art 3 of the Convention on the Rights of the Child, and then instructs decision-makers about the circumstances in which Art 3 applies. Relevantly, the Citizenship Instructions state that officers “must consider a child’s best interests when exercising a discretionary power under… s 24(2)”, which was the power exercised in relation to the applicant. In section 18.3 the Citizenship Instructions then set out eight factors about the best interests of the child that it is said: “are most likely to be relevant to citizenship decisions”. Where these factors are drawn from remains unstated. Section 18.3.1 then contains the following statement about weighing the considerations of what is in the best interests of the child:

Article 3 requires that the best interests of the child be a primary consideration in all actions concerning children. Article 3 does not require that the best interests of the child be the only primary consideration. The best interests of the child must be weighed with or against any other primary considerations in the specific circumstances. Other primary considerations may include (but are not limited to):

•    the objectives of the relevant provision/s in the Act

•    community protection and

•    community expectations.

This means that although it may be assessed that a particular decision would be in the best interests of a child, it does not automatically follow that it is the decision that should be made. For example, it may be in the best interests of a child for a delegate to decide not to revoke an associated person’s Australian citizenship under s34 but, depending on the particular facts and after taking into account the other primary considerations, the decision maker may conclude that revocation of the person’s citizenship is the decision that should be made.

53    The concepts of “community protection” and “community expectations” are not explained in this section of the Citizenship Instructions, although the expression “community expectation” appears elsewhere in the document, particularly at section 10.3.3 in relation to the “Australian values statement”, a document which adult applicants for citizenship are required to sign. This “values statement” is said to be an expression of such expectations.

54    Section 5.12.5 is also central to the applicant’s grounds of review. It is introduced by the following general direction:

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.

(emphasis added in underline)

55    The applicant emphasises the parts I have underlined. He submits, and I accept, that the purpose of these three paragraphs is to make it clear that as a first step the decision-maker is required to assess and decide whether a child applicant for citizenship by conferral meets the prescriptions set out in the paragraphs that follow, which are ordered by category of circumstances that may apply to children.

56    Although the Citizenship Instructions describe these following sections as “guidelines” it is apparent from their content and structure, and from the passage I have extracted at [54], especially read with the passage I have extracted at [52], that decision-makers are, by these Citizenship Instructions, being directed to apply and follow the sequence and content of the Citizenship Instructions. As I have noted, to describe them as “guidelines” says little about the effect of the structure, content and language of the Citizenship Instructions.

57    The prescriptions which follow divide child applicants into several categories: children under 16 applying in their own right (the applicant’s category); children applying at the same time as a responsible parent; children under the guardianship of the Minister pursuant to the Immigration (Guardianship of Children) Act 1946 (Cth) and children who are unaccompanied minors but not covered by the Immigration (Guardianship of Children) Act.

58    The prescriptions for the applicant’s category are:

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.

(emphasis added in bold)

59    I have highlighted in bold the parts applicable to the applicant. As I have noted, the premise of the policy is that a child’s application “would usually not be approved” unless the child meets the stipulations set out in this part of the Citizenship Instructions. The way these passages are framed directs the decision-maker to adopt either:

(1)    a default position that an applicant must satisfy a number of non-statutory criteria for the s 24(2) discretion to be exercised in her or his favour; or

(2)    a default position of refusal, and then to assess whether that default position is altered because a child applicant meets a number of non-statutory criteria.

60    Whichever way one approaches the effect of these passages, the unconfined discretion in s 24(2) is, in reality, closely and specifically regulated by section 5.12.5 in relation to child applicants under the age of 16.

61    The third dot point concerning “significant hardship or disadvantage” provides a link to another part of the Citizenship Instructions (section 5.17) where there are detailed provisions concerning the content of this concept, for the purposes of the policy.

62    What is immediately apparent from section 5.17 is that the subject matter of this part of the Citizenship Instructions is a different statutory discretion altogether. It is not the discretion in s 24(2) of the Citizenship Act, but rather an altogether different discretion in s 22(6) of the Citizenship Act. Section 22(6) relates to circumstances in which the general residence requirements for a citizenship application may be varied, because the Minister is satisfied a person “will suffer significant hardship or disadvantage if that period [of residence but not as a permanent resident] were not treated as one during which the person was present in Australia as a permanent resident”. Thus, the principal purpose of section 5.17 is to provide a policy framework for decision-makers to assess compliance with the threshold residence requirements in the Citizenship Act.

63    Section 5.17.2 is headed “What is significant hardship or disadvantage”. The section commences with references to the Macquarie dictionary meanings of each of those three words, plainly with some selection having been made by the drafter about which meaning to choose because the extracts do not purport to be quotations from the Macquarie Dictionary. For example, one of the techniques employed is to introduce definitions, as if the Citizenship Instructions were a statute. When these are compared with the definitions of each word given in the fifth edition of the Macquarie dictionary, it is apparent that the method used to establish the “dictionary meaning” of each term has been to take the definition listed first for each word and to omit any further or alternative definitions. For example, the Citizenship Instructions define the term “hardship” using the first definition listed for that word, being “a condition that bears hard upon one; severe toil, trial, oppression, or need”, omitting the alternative definition provided for the noun: “2. An instance of this; something hard to bear”.

64    Thus, decision-makers dealing with a child such as the applicant, who has met the residence requirement, are directed to employ the criteria in section 5.17 to determine the meaning and content of a concept (“significant hardship or disadvantage”) which is not found in the statute conferring the discretion the decision-maker is called on to exercise. Further they are directed to adopt what purport to be exclusive definitions of a (relevantly) non-statutory concept.

65    The section then goes on to set out the circumstances applicants would “normally be required to demonstrate”. It can be inferred that by the use of the word “normally”, just as with the use of the terms “not usually” and “normally” in other places in the Citizenship Instructions, the purpose of employing such terms in the Citizenship Instructions is to direct decision-makers to adopt a starting point or premise that is consistent with the criteria set out in the Citizenship Instructions, and then to require them to be positively persuaded to adopt a different approach if an applicant does not meet that starting point or premise. The Citizenship Instructions state that an applicant would “normally be required to demonstrate”:

•    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.

66    Of these, it is apparent that a child, and more especially a young child, would be unlikely to be able to “demonstrate” any of these kinds of effects. The first is plainly irrelevant. Nevertheless the Citizenship Instructions require the decision-maker to measure the application against that criterion. No rationale is given for the choice of these three categories of “hardship”. Indeed, no rationale is offered as to why it is appropriate to impose an additional threshold of the existence of hardship or disadvantage at all.

67    The Citizenship Instructions go on, in section 5.17.2, to raise the bar even further about this superimposed requirement of significant hardship or disadvantage. They state:

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.

68    The Citizenship Instructions then assert that “evidence is required” that a person’s lack of Australian citizenship is the cause of the significant hardship or disadvantage. I return to this matter below, however it is worth pointing out that this passage is a good example of how the Citizenship Instructions, by their structure, content and language, effectively reverse the operation of the statutory scheme established by the Parliament. The scheme established by the Parliament relevantly has four components: a duty to consider whether to approve or refuse to approve a citizenship application; the imposition of certain threshold requirements before an application can be approved; a series of express prohibitions or constraints requiring the refusal of approval and a general discretion to refuse approval.

69    Nothing in the statutory scheme indicates an intention by Parliament that the required approach to the duty in s 24(1) of the Citizenship Act (whether to approve or refuse approval) or to the discretion in 24(2) (whether to refuse approval) is for a decision-maker to ask what hardship or disadvantage a lack of citizenship will cause, as if the correct approach – and operating premise – is that a person must establish some kind of positive, tangible need to have citizenship. Rather, an application for citizenship is an opportunity for a person to become a full and formal member of the Australian community, with all the reciprocal rights and obligations that entails. It will be recalled that the Preamble to the Citizenship Act itself 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.

70    The statute places no onus on an applicant for citizenship to prove why citizenship is necessary to avoid hardship or disadvantage, in comparison with continuing only with the status of a permanent resident. Yet, this is the effect of the Citizenship Instructions for child applicants in the applicant’s situation.

The Tribunal’s decision

71    The applicant’s eligibility, pursuant to s 21(5) of the Citizenship Act was not in dispute before the Tribunal. The merits review centred on the discretionary power of refusal contained in s 24(2).

72    The Tribunal’s function was, of course, to make the correct or preferable decision on the material before it: see Bushell v Repatriation Commission [1992] HCA 47; 175 CLR 408 at 424-425 (Brennan J).

73    In Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [10] French CJ described the review function of the then Refugee Review Tribunal and Migration Review Tribunal. This description applies equally to the function of the AAT:

The word “review” “has no settled pre-determined meaning; it takes its meaning from the context in which it appears.” As appears from the nature of the powers conferred on these tribunals, the review each must undertake involves a fresh consideration of the application which led to the decision under review. The review must be based on the evidence and arguments placed before the tribunal and any other relevant information which the tribunal itself obtains. Each tribunal must identify for itself the issues that arise in the application before it. It is not confined to the issues considered by the delegate.

(footnotes omitted)

See also: Kowalski v Repatriation Commission [2011] FCAFC 43 at [33]-[34], where the Full Court took a similar approach, applying Bushell and the High Court’s findings in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429 to the jurisdiction conferred on the AAT under the Veterans’ Entitlements Act 1986 (Cth). See also: Warren v Repatriation Commission [2015] FCAFC 159; 238 FCR 124 at [13]-[14] (Jessup J, Collier and Mortimer JJ agreeing).

74    At [4], the Tribunal framed the issue that needed to be determined in the following way:

The issue before the Tribunal is whether the delegate of the Minister should have refused to approve GZQZ becoming as Australian citizen pursuant to the discretion in section 24(2) of the Act.

75    Framing the question in this way poses a rather narrower description of the Tribunal’s function as a full merits reviewer than that described in the authorities to which I have referred. The appropriate question for the Tribunal was what was, on the material before it, the correct or (if there is more than one correct way) preferable way in which to perform its duty under s 24(1) and to exercise the discretion in s 24(2) of the Citizenship Act, in relation to the applicant’s citizenship application. The starting point was not whether the Tribunal considered there was anything wrong with the delegate’s refusal, or what the delegate “should” have done. From the outset, the Tribunal’s task began to miscarry.

76    The miscarriage continues in the very next paragraph. At [5], the Tribunal stated:

In determining this, the Tribunal must consider:

•    Is it in the best interests of GZQZ that he be granted Australian citizenship?

•    Would GZQZ otherwise suffer significant hardship and disadvantage if his application for Australian citizenship is refused?; and

•    Do the full circumstances of GZQZ’s case (including his best interests) nevertheless warrant approval of his application for Australian citizenship because of the unusual nature of those circumstances?

77    The three questions the Tribunal poses for itself are entirely taken from the Citizenship Instructions. The Tribunal describes these as matters it “must consider”. Its reliance on the Citizenship Instructions constrains its exercise of discretionary power from the outset. More than that, the Tribunal adverts to nothing else. It does not advert to the qualifications at the start of the Citizenship Instructions and which I have extracted above at [37]. More importantly, it does not start with the statute, which is the source of its power. It does not recognise its duty in s 24(1), nor does it recognise that the discretion to refuse in s 24(2) is not confined by, or conditioned on, any of the three matters it has set out as matters it “must” consider.

78    Indeed, not only does the Tribunal not refer to s 24(1) at [5] of its reasons, it does not even set it out as part of the relevant legislative framework for its decision at [6]-[7] of its reasons. Instead, it sets out only the discretion to refuse approval in s 24(2). Thus, again, it was framing its task as whether to refuse the application, rather than whether to approve or refuse to approve the application. It started with a negative premise, which was an incorrect approach. Its statutory task was contained in s 24(1) not s 24(2).

79    I have described above the structure and content of the Citizenship Instructions. At [9] of its reasons, the Tribunal describes how it saw the role of section 5.12.1 of those Citizenship Instructions, being one of the central aspects of the policy set out in the Citizenship Instructions applicable to the applicant’s citizenship application:

Section 5.12.1 of the ACIs provides that the discretion in s 24(2) of the Act to refuse to approve an applicant becoming an Australian citizen despite being eligible under s 21(5) of the Act would usually be exercised where GZQZ does not meet the policy guidelines.

80    This passage reinforces the negative premise which is the Tribunal’s starting point, although it superimposes a second negative premise. Not only is the Tribunal commencing with considering whether to refuse to approve the application; it is now adding to that a starting proposition that refusal would “usually” occur unless the criteria in the policy are met. There is nothing in the Tribunal’s language which discloses any consciousness that its discretionary power need not only be approached through this prism.

81    The Tribunal then states at [10]:

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 (section 5.12.2) and the policy guidelines.

82    This is a direct quotation from 5.12.1 of the Citizenship Instructions, which I have extracted at [5] above. It suffers from the difficulties I have expressed above. It is unsurprising, since the Tribunal is adhering strictly to the Citizenship Instructions, that the Tribunal also sees these three matters as having equal prominence.

83    Having adopted that as a starting point, the Tribunal then applies, step by step, the contents of the Citizenship Instructions.

84    The Tribunal refers to s 5.12.5 of the Citizenship Instructions which I have extracted and discussed above. The Tribunal first sets out (at [11]) the specific criteria in the Citizenship Instructions which, unless met, would usually result in an application not being approved, and then moves (at [12]) to the “best interests” criterion, as it is expressed at 15.12.5 of the Citizenship Instructions, which the Tribunal sets out verbatim. Again, however, the structure of the reasoning of the Tribunal is:

(1)    Refusal of approval unless the specific criteria are met; and

(2)    Consideration of best interests to see if refusal should not be the outcome.

85    All premised, as I have noted, on refusal being the starting point, and the “usual” outcome.

86    From [13], the Tribunal then goes through the specific criteria in 5.12.5, which I have discussed above. It is clear from the language used that the Tribunal is approaching its task as if these criteria must be met, and G’s application can be approved only if he meets the policy prescriptions. The extreme level to which the Tribunal takes this can be seen from the opening words of [14]:

An applicant would need to demonstrate that not having citizenship is the only or major cause for the significant hardship or disadvantage.

87    The Tribunal places an onus on the applicant not present in the statute. The onus relates to matters not present in the statute. The requirement for a causal nexus between not obtaining citizenship and some identified disadvantage, and a singular causal nexus at that, is not a requirement that can be derived from the scope, subject matter and purpose of the statutory provisions. It is extraneous to them, and antithetical, because it involves a reversal of the approach required by the Citizenship Act.

88    Another example of how far the Tribunal strays away from the statute is [15] of its reasons:

The ACIs provide that decision-makers 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, whereas personal wants are aspirations and generally do not constitute hardship (for example the right to vote, election to Parliament or representing Australia internationally).

89    The right to vote is a central feature of citizenship. It is not a “want”: it is a civil and political right that inheres in all citizens, subject to any exceptions provided by law. Indeed, it has been characterised as a constitutional right: see Roach v Electoral Commissioner [2007] HCA 43; 233 CLR 162 at [7], (Gleeson CJ). In Roach at [12] Gleeson CJ describes the present understanding of the concept of citizenship:

Since what is involved is not an additional form of punishment, and since deprivation of the franchise takes away a right associated with citizenship, that is, with full membership of the community, the rationale for the exclusion must be that serious offending represents such a form of civic irresponsibility that it is appropriate for Parliament to mark such behaviour as anti-social and to direct that physical separation from the community will be accompanied by symbolic separation in the form of loss of a fundamental political right. The concept of citizenship has itself evolved in Australian law. The preamble to the Australian Citizenship Act 2007 (Cth) declares that 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. The reference to the reciprocity of rights and obligations is important in the context of membership of the community. Serious offending may warrant temporary suspension of one of the rights of membership, that is, the right to vote. Emphasis upon civic responsibilities as the corollary of political rights and freedoms, and upon society’s legitimate interest in promoting recognition of responsibilities as well as acknowledgment of rights, has been influential in contemporary legal explanation of exclusions from the franchise as consistent with the idea of universal adult suffrage.

(footnotes omitted)

90    Although the applicant is a young child, if he were a citizen then as he grew – and like any other Australian citizen child – his sense of himself as a full member of the Australian community would shape, ultimately, how he chose to exercise his right to vote. The Tribunal’s dismissal of the right to vote as something which can be discarded in determining whether or not to approve an application for citizenship reveals how fundamentally the Tribunal misunderstood its task, and was distracted by the content of the Citizenship Instructions.

91    The Tribunal has, in my opinion, been encouraged to stray into this entirely unnecessary and extraneous territory because of the structure and content of the Citizenship Instructions, together with its strict adherence to them. In [15], the Tribunal embarks on an exegesis of distinctions not even made in the Citizenship Instructions, but flowing from them because the Citizenship Instructions have encouraged it, as a decision-maker, to focus on what disadvantage might be caused if citizenship is not granted. The Citizenship Act has no such focus.

92    The Tribunal then commences to set out the evidence before it about the applicant. However, it is worth noting that the heading to this section of the Tribunal’s reasons is:

Should the discretion to refuse to approve the application be exercised?

93    Again, this is but one component of the Tribunal’s task. The core task for the Tribunal is that in s 24(1).

94    The evidence dealt with G’s difficulties at school, the fact the family is separated because his father is in immigration detention; G’s autism and the treatment and assistance he receives in relation to his condition, and what the situation would be if the applicant were to return to Albania, in terms of access to medical and health care facilities. The Tribunal summarised some aspects of G’s mother’s evidence in the following way (at [22]-[23]):

22.    The mother reiterated that she wants GZQZ to be granted Australian citizenship because she wants to ensure his safety and for him to feel secure, particularly as he is a sensitive child who does not cope well with change, and the specialist medical treatment for his autism would not be available in Albania. She said that she would feel less stressed if the citizenship application is approved and his stability is maintained.

23.    At the hearing the mother acknowledged that there is little practical difference between citizenship and permanent residence with regard to GZQZ’s daily activities, but she maintained that citizenship would give him a sense of belonging in the country of his birth. She also conceded that if citizenship is granted to GZQZ she would use his status to try to remain in Australia. She said that if she is forced to leave Australia, she would take GZQZ with her, but if the father is forced to leave she would seek to remain in Australia with GZQZ.

95    I infer from the fact that the Tribunal used the term “conceded” that the issue of whether G’s mother would “use” her son’s citizenship to try and stay in Australia was either put to her by the Tribunal, or by the solicitor for the first respondent. It is unclear why this was a relevant matter at all: clearly if a child is a citizen and a parent is not, the parent may wish to rely on the fact of the child’s citizenship in their own application for a particular migration status. Either the law will allow that or it will not. There is nothing inappropriate, or to be criticised, about such a matter, although plainly the Tribunal considered this fact cast the mother (and perhaps the applicant’s application) in a negative light.

96    The Tribunal then went through evidence given by a social worker, the principal of G’s school and G’s paediatrician, all of which was supportive of G’s application.

97    The Tribunal then refers to a series of events concerning the applicant’s father’s application for a bridging visa, which are not relevant to the grounds of review. Suffice to say those events led the Tribunal to adjourn the review for some time, but after about eleven months the applicant’s solicitor made it clear the applicant did not ask the Tribunal to postpone its decision any longer, despite the father’s circumstances not being resolved.

98    After a statement with which I deal at [120] below, the next part of the Tribunal’s reasoning under the heading “Consideration” begins with a discussion under the following heading:

Is it in the best interests of GZQZ that he be granted Australian citizenship?

99    As I have already noted, this may, on one view, be a question arising from the terms of the introductory statement in 5.12.1 of the Citizenship Instructions, read with the section on the best interests of the child. It is not a question posed by the Citizenship Act.

100    Nevertheless, having posed this question for itself, the Tribunal does not answer the question it has posed. Instead it deals with a different question, and one that it reframes in the negative – whether “if GZQZ is not granted Australian citizenship at this time, his best interests, as informed by the Convention [on the Rights of the Child], will be compromised”. Inherent in that question is the imposition of another burden on the applicant to prove, and for the Tribunal to be satisfied, that his interests will be compromised.

101    The way the Tribunal poses the question is also clearly influenced by the content and approach of the Citizenship Instructions, which is to commence from a position that a child’s citizenship application should not be granted unless certain criteria are met. That is, the Citizenship Instructions also start from the negative position of a refusal.

102    Conversely, even if it were a legitimate approach to ask the question posed by the Tribunal as part of its consideration (and it can be accepted, consistently with the authorities to which I have referred at [48] above that it is a permissible enquiry), answering the positively put question may have led it to a different approach.

103    Instead, the Tribunal’s reasons disclose the effect of the burden it imposed on the applicant, and its starting point of refusal. In its reasons concerning G’s “best interests” it did not consider any of the evidence before it, and to which it had earlier referred, about why citizenship would make a positive difference to G. Aside from the mother’s evidence (which the Tribunal also did not consider in this part of its reasons), that evidence was, on the face of the Tribunal’s reasons, not subject to any criticism and was from three independent sources: a social worker, a school principal and a paediatrician. Instead, the Tribunal looked only for evidence of compromise of the three matters it sets out in [35]:

35.    Although the best interests of the child is not defined in the Convention on the Right of the Child, the Preamble recognises that every child is entitled to protection from violence and abuse; families should be respected; and the child should be able to preserve his or her identity.

36.    There is no evidence before the Tribunal that if GZQZ is not granted Australian citizenship at this time, his best interests, as informed by the Convention, will be compromised. GZQZ is protected by his mother from violence and abuse; the family is able to remain together at present (apart from the detention of the father); and his identity is preserved. If the mother is forced to leave Australia, it is highly likely that GZQZ would accompany her and continue to live with her and be protected by her. There is no evidence to persuade the Tribunal that the lack of an Albanian passport would prevent GZQZ from travelling to Albania, as he is an Albanian citizen pursuant to the laws of that country because his parents are Albanian citizens, and he would probably be able to obtain acceptable documents for travel purposes. GZQZ’s permanent visa would enable him to visit Australia whenever practical.

37.    For these reasons, the Tribunal finds that GZQZ has not demonstrated that it is in his best interests that his application for Australian citizenship be granted by conferral at this time.

104    A further difficulty with the Tribunal’s reasoning in [36] is that its finding that the applicant would be “protected” in Albania is directly contrary to the finding of the Refugee Review Tribunal. The Tribunal does not engage with the Refugee Review Tribunal’s findings or reasoning, nor seek to distinguish them on the material before the Tribunal: rather, it simply ignores the finding and the outcome of the Refugee Review Tribunal’s decision. Again the Tribunal appears to have been so closely focussed on its own interpretation of the requirements of the Citizenship Instructions as to in substance ignore material it should have been addressing.

105    The Tribunal then asked itself the following question (by a heading):

Would GZQZ otherwise suffer significant hardship and disadvantage if his application for Australian citizenship is refused?

106    This question goes back to the criterion which is set out in 5.12.5, where the Citizenship Instructions direct a decision-maker that an application would usually be refused unless this criterion is met.

107    The Tribunal outlines evidence given by the applicant’s mother, his school principal, his paediatrician and a social worker who had been working with the family for about five years, all of whom emphasised the stability, security and certainty that having citizenship would bring to the applicant, and all of whom noted how unsettled, distressed, uncertain and unstable he currently was.

108    The Tribunal made no findings that this evidence was not credible or reliable, and made no criticism of these witnesses. However it approached their evidence only through the confines imposed by the Citizenship Instructions.

109    The Tribunal made the following findings:

40.    The Tribunal accepts that GZQZ is a young boy who has lived all his life in Australia and has a close connection with Australia. He has special needs that are being addressed by medical practitioners, and he is doing well at school and at home with the support of teachers and community organisations. He has been granted a protection visa on the basis of the risk of serious harm if he returns to Albania. His parents have been unable to register his birth in Albania and have been unsuccessful in obtaining an Albanian passport for him.

41.    As GZQZ’s parents have been refused protection visas, their immigration status remains uncertain, raising questions about whether GZQZ would remain in Australia if his parents (particularly the mother) are forced to leave. The uncertainty about the application for citizenship has affected the mother and has caused her some emotional distress, which in turn affects GZQZ.

42.    However the Tribunal also accepts that any hardship or disadvantage caused to GZQZ arises not only because of the refusal of citizenship, but is due mainly to the father’s detention and the uncertain visa status of both parents. There is no evidence before the Tribunal that the grant of citizenship would protect GZQZ from the instability of the parents’ situation or from the possibility that he may be required to return to Albania with them.

43.    Similarly, as GZQZ is already doing well at school and his medical and special needs are being addressed, there is no evidence before the Tribunal to suggest that this would cease without the grant of Australian citizenship. As a permanent resident, GZQZ has permission to remain in Australia and to continue to receive the support he currently enjoys by way of access to education, health and social welfare services. The grant of citizenship would make no difference to his right to reside in Australia.

110    Although it refers to the fact that G’s parents have been unable to register his birth in Albania and have been unsuccessful in obtaining an Albanian passport for him, the Tribunal does not actually appear to take into account the fact that, at least at the time of the hearing before it, G had no status in Albania, but more importantly, could not reasonably be expected to return to Albania as the Refugee Review Tribunal had found he faced a real chance of suffering significant harm there.

111    Further, the finding at [43] again continues the theme which pervades the Citizenship Instructions, but not the Citizenship Act: namely, that a child applicant for citizenship in G’s position must identify some matter which is out of the ordinary, compelling and necessary in order for citizenship to be granted. This is but one of the many passages in the Tribunal’s reasons where the Citizenship Instructions have plainly, and impermissibly, confined and skewed the Tribunal’s consideration of G’s application.

112    Thirdly, and finally, the Tribunal asked itself the following question by way of a heading:

Do the full circumstances of GZQZ’s case (including his best interests) nevertheless warrant approval of his application for Australian citizenship because of the unusual nature of those circumstances?

113    This question is the “fall back” position set out in the Citizenship Instructions, where a child applicant has, relevantly, failed to satisfy the decision-maker that she or he will suffer hardship or damage if the citizenship application is refused.

114    It was under this heading that the Tribunal referred to the basis on which the applicant was granted a protection visa. It described that basis as follows (at [46]):

…on the basis of the claims of his parents arising from the alleged blood feud and also GZQZ’s developmental delay and associated medical issues.

115    I note this finding is, in fact, erroneous. While findings were made by the Refugee Review Tribunal concerning G’s medical and developmental issues and the limited support available in Albania, this was found not to be a basis for complementary protection: the sole basis was the blood feud.

116    The Tribunal then concluded (in the same paragraph):

However the events giving rise to the alleged blood feud occurred about 15 years ago, and there is no persuasive evidence that GZQZ would be in any danger if he is required to return to Albania with his parents. There is no evidence that medical facilities in Albania would be inadequate or otherwise unable to deal with GZQZ’s special needs. Accordingly the Tribunal is not satisfied that, when viewed in its overall circumstances, GZQZ’s position is out of the ordinary or unusual, particularly in view of his status as a permanent resident of Australia.

117    This finding is contrary to the Refugee Review Tribunal’s findings at [170] and [195], made only five years before the Tribunal’s decision, which it might be thought provided more than “evidence” for the Tribunal, and might have been considered a finding that this Tribunal was obliged to give considerable weight to, and apply unless there was evidence before it to the contrary. The use by the Tribunal of words such as “alleged” to describe a factual situation (blood feud) that the Refugee Review Tribunal had accepted in its fact-finding is inappropriate. The Tribunal did not seek to, and was not authorised to, re-consider the grounds for the applicant’s protection visa application. It was required to, and should have, accepted the findings made by the Refugee Review Tribunal. For it to do otherwise undermines the integrity of the administrative decision-making process. The word “alleged” again discloses its predisposition to refuse G’s citizenship application, encouraged, I infer, by the structure and content of the Citizenship Instructions.

118    Even if, contrary to my present view, there was a lawful basis on which the Tribunal might have decided to depart from the Refugee Review Tribunal’s findings, it would need to have done so by confronting the evidence in the proceedings before the Refugee Review Tribunal, and also the mother’s evidence before the Tribunal itself on the review of the citizenship decision (see [19] of the Tribunal’s reasons). It did none of this. Again, the Tribunal appears to have been blinded by the approach required by the Citizenship Instructions, which did not deal with complexities such as those arising in G’s circumstances.

119    Nowhere in its reasons does the Tribunal disclose any consciousness of the fact that it has an unfettered discretion to decide whether to refuse or not to refuse the citizenship application.

120    It is true that in its reasons at [33] the Tribunal stated:

The Tribunal is obliged to apply the policy contained in the ACIs unless there are cogent reasons not to do so (Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634). In this case the Tribunal considers that there are no cogent reasons not to do so, and the policy in the ACIs should be applied.

121    Although a supervisory Court should not rely too heavily on the placement of matters within the reasons of the decision-maker, in this case the placement is telling. The Tribunal had set out the issue it had to determine at [4] of its reasons, and then the structure of its consideration at [5]. It had then elaborated on that structure in the way I have outlined above. All of these passages were a direct and entire application of the Citizenship Instructions, with the Tribunal failing to note that its task was that in s 24(1) not s 24(2). For the Tribunal to insert a passage such as that at [33] at the start of its “consideration”, in the middle of its reasons, should be seen as nothing more than formulaic, and not representative of its actual reasoning process. Further, for reasons I develop below, an incantation of a paraphrase of a portion of Drake (No 2) in the context of applying a policy such as the Citizenship Instructions is not capable of saving this decision from the relief I consider should be granted.

122    In oral argument, counsel for the Minister accepted that what the Tribunal set out at [33] was not the language in Drake (No 2), but resisted the proposition that it did not reflect the law in Drake (No 2). The Minister submitted the Tribunal’s phrasing was merely “inelegant”. I do not accept that submission. In my opinion, the Tribunal expressed itself in this way because it considered it was obliged, in a practical sense, not only to take the Citizenship Instructions into account, but strictly to adhere to their structure, their content and the outcomes suggested by that content. All of its reasons – in content and structure – support this conclusion. Its statement at [33] does not reflect the legal principles in Drake (No 2) and it is put at a level of compulsion which is consistent with the Tribunal, in reality, applying the policy inflexibly. I return to this matter when I consider the grounds of review.

123    Finally, if any further confirmation of the incorrect approach by the Tribunal was required, the last paragraph of its reasons (which comes well after its reference to Drake (No 2)), confirms the view I have expressed. The Tribunal ends its reasons by stating:

For these reasons the Tribunal finds that GZQZ has not demonstrated that the full circumstances of his case are so unusual that approval of his Australian citizenship application is warranted at this time.

(emphasis in original)

124    This, as a conclusion, is not drawn in any way from the Citizenship Act, and indeed is based on matters I find extraneous to the Citizenship Act. It discloses no consciousness of the Tribunal’s task under s 24(1), nor its task to make its own decision on the material before it, not the decision proposed by the Citizenship Instructions.

Grounds of review

125    The applicant identifies four grounds of review. Ground 1 alleges the Tribunal misunderstood the content of the concept of the best interests of the child. It is based on the Citizenship Instructions not being correctly understood and applied.

126    Ground 2 contends that one aspect of the policy contained in the Citizenship Instructions is unlawful. The applicant contends “the policy requirement that an applicant must demonstrate ‘significant hardship or disadvantage’ as a precondition to the non-exercise of the discretion to refuse the citizenship application” is unlawful.

127    Ground 3 contends that the Tribunal inflexibly applied the policy in the Citizenship Instructions, and confined itself to deciding whether the criteria in the policy were met. In particular, he contends the Tribunal did so by requiring G to demonstrate that the “full circumstances” of his case were “unusual” or “so unusual” as to warrant departure from the policy set out in the Citizenship Instructions.

128    Ground 4 contends that the Tribunal made a material finding of fact that was not open on the evidence, at [46] of its reasons where it found:

…there is no persuasive evidence that [G] would be in any danger if he is required to return to Albania with his parents.

129    The applicant contends that finding was not open on the evidence before the Tribunal which included the findings of the Refugee Review Tribunal in relation to the applicant’s protection visa. Later in that same passage at [46], the Tribunal referred to “no evidence” that medical facilities in Albania would be inadequate or otherwise unable to deal with G’s special needs. At the hearing, counsel for the applicant sought leave to expand the particulars to ground 4 as they appeared in the amended originating application, to take in the Refugee Review Tribunal’s reference to adequacy of medical facilities. Counsel did so, it was submitted, to make it clear that this ground sought to rely on all of the Refugee Review Tribunal’s findings, seen with the evidence before the Tribunal from G’s mother and his paediatrician, about the risks he would face in Albania, both of a health and non-health kind. Counsel for the applicant relied on the fact (not contested by the Minister) that the Refugee Review Tribunal had found G would face a real chance of significant harm on return because of his autism and the paucity of medical facilities in Albania, but found this fell within one of the exceptions to the concept of serious harm (within the meaning of s 91R of the Migration Act as it existed at the time) and so did not find G satisfied the criteria for a protection visa on this basis. Counsel contended on this application nevertheless that this evidence was uncontested, and the subject of a finding by the Refugee Review Tribunal. In that way, he submitted the Tribunal’s approach involved either jurisdictional error, or was an error of law, or was contrary to law, within s 5(1)(f) and 5(1)(j) of the AD(JR) Act.

130    The Minister did not oppose leave being granted to rely on this argument, as counsel for G expressed it at the hearing, and sought leave to file additional written submissions on ground 4 if he considered it necessary to supplement oral argument, given the new way it was expressed. I granted the Minister that leave, but in the end no further written submissions were filed.

Resolution of the grounds of review

131    I consider each ground of review should succeed. Although in the course of my reasons I have identified a number of flaws in the Tribunal’s approach and reasoning which do not form part of the grounds of review, I have not relied on any of those matters as a basis for the orders I make. Many of those factors confirm the contentions underlying one or more of the grounds of review, and I have considered them only in that context. An example is what I have said about the way the Tribunal commences its reasons in [4] and [5]: see [74]-[78] above. This is not identified as a free standing legal or jurisdictional error, but it is clear evidence supporting the applicant’s arguments on ground 3.

132    As to ground 1, I accept there are passages in some authorities which were properly employed in support of the Minister’s resistance to this ground. Nevertheless, on balance I consider those authorities do not preclude me, as a single judge, upholding the ground under the AD(JR) Act.

133    Even if I had formed a contrary view about ground 1, my conclusions on grounds 2, 3 and 4 would have led to the grant of relief in any event.

134    The bases on which I am prepared to uphold grounds 2, 3 and 4 of the application differ, 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. In this case, strict and blinkered adherence to the Citizenship Instructions has caused the Tribunal’s performance of its task to miscarry. On the one basis of invalidity articulated by the applicant in the amended application (that is, the policy requirement that an applicant demonstrate “significant hardship or disadvantage” referred to in ground 2) I find the policy to be unlawful. Had further bases been identified, I may well have agreed that other aspects of the policy were also unlawful, but the applicant did not rely on any other bases and I do not decide them.

135    The fact that this Court is exercising jurisdiction under the AD(JR) Act as well as the Judiciary Act means it is not necessary to confine my consideration to whether the errors made by the Tribunal were of a jurisdictional kind, in the sense explained in Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 and Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531. Counsel for the applicant was correct to submit that the AD(JR) Act grounds are not dependent on the concept of jurisdictional error, which might be said to be an amalgam of constitutional and common law concepts. The AD(JR) Act provides statutory grounds, which fall to be considered on their terms and in light of applicable authorities, informed but not confined, by the jurisprudence arising from s 75(v) of the Constitution.

Other authorities on s 24 of the Citizenship Act

136    The view I have taken about the Tribunal’s task under s 24 is not inconsistent with the authorities of this Court. In Singh v Minister for Immigration and Citizenship [2012] FCAFC 12; 199 FCR 404, the Full Court at [54] approved the description given by Buchanan J in Budilay v Minister for Immigration and Citizenship [2011] FCA 508; 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. That is how I have also approached s 24, although I have placed more emphasis on the terms of s 24(1). 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. That, in my opinion, reflects in general terms the finding of the Full Court in Singh at [55]-[56], and is consistent with Budilay.

137    With respect, the finding of Marshall J in Singh v Minister for Immigration and Citizenship [2011] FCA 685 at [12] that the Citizenship Instructions are valid was made without a great deal of analysis. His Honour relied on Budilay at [11] and the reference to “usually be approved” as indicating the “appropriate decision” was left to the decision-maker. His Honour also referred to Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20; 182 FCR 115 at [40]-[45] for the proposition that the Citizenship Instructions constitute a statement of departmental policy to which an administrative decision-maker is entitled to have regard. The paragraphs in Hneidi at [41]-[44] are worth setting out, because they draw, by reference to the decision of the Full Court in Drake v Minister for Immigration and Ethnic Affairs [1979] FCAFC 39; 24 ALR 577, some of the distinctions to which I refer in these reasons:

41.    For present purposes, four relevant propositions emerge from their Honours’ consideration of that question. The first is that the decision-maker is entitled, in the absence of specifically defined criteria for the exercise of the discretion, to take into account “government policy”. Thus, where the Tribunal is not under a statutory duty to regard itself as bound by the policy, it is entitled to treat the policy as a relevant consideration.

42.    Second, in the absence of a specific statutory provision (which would no doubt be unusual) the Tribunal is not entitled to abdicate its function of determining whether the decision under review was, on the material before the Tribunal, the correct or preferable one, to a more passive function of determining whether the decision conformed to the relevant policy.

43.    Third, it is not desirable to frame a general statement of the part which government policy should ordinarily play in the determinations of the Tribunal. That is a matter for the Tribunal to determine in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions but balanced against the ideal of justice in the individual case.

44.    Fourth, the borderline between cases in which the Tribunal has abdicated its functions to those of an unthinking application of “government or Ministerial policy” to the facts may sometimes be blurred. But where the Tribunal considers that the correct or preferable decision results from the application of such a policy, it should make it clear that:

… it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion.

(emphasis added)

138    As always, the particular grounds of review expressed, and the submissions made, must be considered in the context they are raised. Broad statements from previous authorities, where there were no similar arguments, are of limited assistance.

The role of executive policy, especially in the AAT

139    As I have noted, the Citizenship Instructions are made as an exercise of executive power, reflecting executive policy in relation to the statutory powers conferred by the Citizenship Act. As I have also noted, they adopt a form which mirrors a legislative instrument. That form cannot alter the legal nature of the Citizenship Instructions: the contents remain an expression of executive policy.

140    The approach in Australian federal administrative law to the role of executive policy, from a point shortly after the creation of the Administrative Appeals Tribunal, should be revisited before considering the applicant’s grounds of review.

Green v Daniels

141    Chronologically, and in a different context, the first authority which should be considered is the decision of Stephen J, sitting as a single judge in the High Court in Green v Daniels [1977] HCA 18; 13 ALR 1. The case concerned a review of a decision about eligibility for unemployment benefits. It concerned a first instance decision, rather than one on merits review, but the observations of Stephen J about the lawful limits of executive policy are important to the resolution of the applicant’s grounds of review.

142    A policy had been promulgated concerning the ineligibility of school leavers, upon leaving secondary school, for unemployment benefits for the duration of the school vacation (between the end of one school year and the start of the next). Therefore, there was a period of approximately two to three months where a person in the plaintiff’s position was rendered ineligible for unemployment benefits, due to the policy. At the time, the relevant provision of social security legislation (the Social Services Act 1947 (Cth), s 107) provided that a person who:

(a)     has attained the age of sixteen years but, being a male, has not attained the age of sixty-five years or, being a female, has not attained the age of sixty years;

(b)     is residing in Australia on the date on which he lodges his claim for a benefit and –

(i)    has been continuously so resident for a period of not less than twelve months immediately preceding that date; or

(ii)    satisfies the Director-General that he is likely to remain permanently in Australia; and

(c)     satisfies the Director-General that he –

(i)    is unemployed and that his unemployment is not due to his being a direct participant in a strike;

(ii)    is capable of undertaking, and is willing to undertake, work which, in the opinion of the Director-General, is suitable to be undertaken by that person; and

(iii)    has taken reasonable steps to obtain such work,

shall be qualified to receive an unemployment benefit.

143    Stephen J noted that s 107(c) was premised on the satisfaction of the Director-General, or his delegate. Stephen J framed the issue as whether the Director-General had “wrongly precluded himself” from forming the requisite state of satisfaction prior to the end of February 1977, by reason of the inflexible application to the plaintiff of the policy that school leavers who left school within 28 days of the end of the school year should not be treated as eligible for benefits until the end of the school holidays. Stephen J referred to the “Unemployment and Sickness Benefit Manual” in which the relevant policy was to be found, along with other “instructions concerning the administration of the present legislation”. The wording of the policy began with the words “As a general rule…” This qualification was repeated in the correspondence sent to the plaintiff, informing her that she would not be eligible for benefits until after the school holidays.

144    Stephen J held that whatever “hint of flexibility and of room for consideration of exceptional cases” might be thought to be conveyed by the use of the words “as a general rule”, the application of the rule to the plaintiff contained no suggestion of anything other than an inflexible rule. His Honour found this was not a situation where there was, in fact, anything exceptional about the plaintiff’s situation: rather, she (“no doubt, with very many others”) was dealt with in accordance with a “general administrative rule”.

145    Stephen J notes (at 9) that the statutory power involved is not a general discretion such as that given to licensing judges, but rather the Social Services Act in s 107 lays down specific criteria and:

all that is left for [the Director-General] to do is to decide whether or not he attains a state of satisfaction that the circumstances exist to which each of the criteria refer.

146    Stephen J accepted that the Director-General was able to provide guidelines indicating what he regards as justifying such a state of satisfaction, but if in the course of doing so:

he issues instructions as to what will give rise to the requisite state of satisfaction on the part of his delegates and these are inconsistent with a proper observance of the statutory criteria he acts unlawfully; should his delegates then observe those instructions, their conclusions concerning an applicant’s compliance with the criteria will be vitiated.

147    His Honour concluded this is what had occurred in the plaintiff’s case. The policy of no benefits during the school holidays had been “superimposed” on the statutory criterion of whether an applicant was unemployed and had taken reasonable steps to obtain work. Stephen J also held that the three-month time period before benefits could start was an arbitrary time in two respects: it did not depend on matters relevant to the application for unemployment benefits, but rather on the time set by authorities for school holidays; and second, it was only imposed on those who left school within 28 days of the end of the school year.

Drake

148    In the Full Court’s decision in Drake, Bowen CJ and Deane J said (at 589):

The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. The Act offers little general guidance on the criteria and rules which the Tribunal is to apply in the performance of its task of reviewing administrative decisions which are subjected to its surveillance. Even in a case such as the present where the legislation under which the relevant decision was made fails to specify the particular criteria or considerations which are relevant to the decision, the Tribunal is not, however, at large. In its proceedings, it is obliged to act judicially, that is to say, with judicial fairness and detachment. In its review of an administrative decision, it is subject to the general constraints to which the administrative officer whose decision is under review was subject, namely, that the relevant power must not be exercised for a purpose other than that for which it exists (Water Conservation & Irrigation Commission v Browning (1947) 74 CLR 492 at 496, 498, 499–500, 504), that regard must be had to the relevant considerations, and that matters “absolutely apart from the matters which by law ought to be taken into consideration” must be ignored: R v Cotham [1898] 1 QB 802 at 806 Randall v Northcote Corp [1910] 11 CLR 100 at 109–110; Shrimpton v Commonwealth (1945) 69 CLR 613 at 620 ; R v Andersons; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189; [1965] ALR 1067 at 1071.

149    The reason for returning to that well-known passage is to emphasise two matters: the Tribunal’s task on review; and the limits on that task. Each bears on how the Tribunal should take into account, and use, a policy made in the exercise of executive power.

150    Later in their reasons in Drake, Bowen CJ and Deane J said this about the Tribunal’s use of executive policy, noting the Tribunal was not:

…entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy be.

151    This was endorsed by Deane J in Nevistic v Minister for Immigration and Ethnic Affairs [1981] FCA 41; 34 ALR 639 at 646 (by Lockhart J at 651-652 and by Franki J at 642). The description of “abdication” to policy as impermissible was also adopted by the Full Court in Hneidi, as I have noted at [137] above.

Drake (No 2)

152    Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; 2 ALD 634 Drake (No 2) is a decision of Brennan J, sitting as president of the AAT. It was the rehearing of Mr Drake’s review application after the Full Court’s decision in Drake. It concerned the Minister’s decision that Mr Drake should be deported following his conviction for possession of cannabis. The deportation power was contained in s 12 of the Migration Act, and was a discretionary power, unconfined expressly by the statute itself.

153    Brennan J acknowledged in Drake (No 2) at 636 that ministerial policy “may play a part” in the exercise of this discretionary power. He also noted that in the Full Court’s decision in Drake at 590, Bowen CJ and Deane J left it to the Tribunal to decide what part ministerial policy should play in its review.

154    It is worth spending some time describing the ministerial policy in Drake. The ministerial policy in Drake (No 2) is not reproduced in full in Brennan J’s reasons. At 636, Brennan J refers to the first Tribunal review of a deportation decision: Re Becker and Minister for Immigration and Ethnic Affairs [1977] AATA 12; 15 ALR 696. His Honour then says (at 637):

Since that time, the Minister has promulgated a new policy statement with reference to the powers conferred by ss 12 and 13 of the Migration Act, and it is desirable to examine that statement and to determine, in the light of the reasons for judgment of the Federal Court of Australia in Drake’s case, what part that policy statement should play, both generally and in the particular circumstances of this case.

155    In fact, the Minister had communicated directly with Brennan J about the promulgation of this new policy. In a letter dated 28 March 1978, the Hon Michael Mackellar wrote:

My dear Judge,

On 29 July 1977, during the hearing of an application for review made by Mr A. L. Becker, you requested and were given through the Commonwealth Crown Solicitor, general information concerning the exercise of my power to order deportation pursuant to the Migration Act 1958.

The Department was unable to provide in the time available a paper providing a full exposition of the policy and procedures which have been evolved over the years for the consideration of deportation cases. However, in essence the information papers which were provided to the Principal Registrar by the Crown Solicitor, in response to your request, depicted accurately the methods and procedures employed by officers to collate all of the pertinent facts for my consideration and the Crown Solicitor's statements as to the views which I hold and observe in the exercise of my discretion were accurately portrayed.

Unfortunately, however, some of the background material reflecting policy and attitudes of former Ministers appears to have proved misleading to the Tribunal in its consideration of applications for review. I refer particularly to the paper entitled “Notes for the Guidance of Officers” prepared in 1966 where on p. 17 the text of press statements are quoted stating in effect that decisions as to deportation should not be made until the convicted person has served the gaol sentence imposed upon him and that the deportation provisions of the Migration Act represent virtually a last resort to deal with the very serious cases where reform cannot be expected of the individual.

Such statements no longer fully reflect attitudes adopted by successive Ministers during recent years nor my own views. I have therefore had prepared a revised paper which outlines in the broad, the legislation, procedural arrangements and policy considerations which I take into account when deciding whether a migrant should be ordered deported on grounds of crime, unsatisfactory conduct, or being an inmate of a mental hospital or public charitable institution (copy attached).

I should mention in the context of section 4 of the paper, that although the paper does not make reference to specific types of offences, I am less disposed to exercise my discretion not to deport than would otherwise be the case in respect of people whose offences involved injury to or corruption of young people. I am particularly concerned where sex offences against children or trafficking in or distribution of drugs has been involved. I understand that my predecessors in office have held similar views.

I hope that this revised paper will be of assistance to the Tribunal in its review of future deportation cases. If there should be any aspects upon which you feel further clarification or amplification would be desirable, I would be pleased to provide any additional information you wish to have.

Yours sincerely, M. J. R. MACKELLAR

The Hon. Mr Justice F. G. Brennan, President, Administrative Appeals Tribunal, 9th Floor, Wales Centre, Akuna Street, CANBERRA CITY, A.C.T. 2601

156    The letter is reproduced in Sharpe J M, The Administrative Appeals Tribunal and Policy Review, (Law Book Company, 1986) at pp 200-201. A longer extract of the deportation policy applied in Drake (No 2) also appears at pp 201-202 of the book.

157    The Ministerial deportation policy considered in Drake (No 2), and a number of the other authorities to which I refer, bears little resemblance to the legislative instrument-like character of the Citizenship Instructions. In its first two paragraphs, the Ministerial deportation policy stated:

4.01     A decision by the Minister to order the deportation of a person from Australia is made after consideration by the Minister of all the material facts and circumstances relating to that person. Every case is decided upon the basis of its individual circumstances.

4.02     The basic question considered by the Minister is whether in all the circumstances it is in the best interests of the Commonwealth of Australia that the person be deported.

158    Brennan J noted that the policy then set out a number of matters to be taken into account in deciding what was “in the best interests of Australia”, noting the “width and complexity” of the factors listed:

The nature of the offence;

The circumstances of the commission of the offence;

The view of the offence expressed by the Court before which the offender appeared;

The nature of the penalty;

The extent of rehabilitation of the offender;

The prospects of recidivism;

The necessity to prevent or inhibit the commission of like offences by other persons;

The previous criminal history of the offender;

The public interest;

The circumstances of the offender;

The circumstances of the family of or other persons having a relationship with the offender;

The obligations of the Commonwealth under the Convention Relating to the Status of Refugees.

159    The obvious observation to make is that this is a list of factors, without any prescription as to how each of those factors is to be assessed, nor any prescription as to the content of those factors. Having described the different tendencies and purposes of these factors, some in favour of the Australian community, some in favour of the individual concerned, Brennan J continued (at 638-639):

The multiplicity of factors for consideration in each case evidently precluded the parliament, as it precludes the Minister, from defining principles of universal application to govern the exercise of the power in every case. In the absence of such principles, the exercise of the power must depend upon the circumstances of each case and the weight then to be accorded to the relevant factors – whether factors emerging from the evidence, or factors revealed by a perception of the relevant interests of Australia. The factors which the Minister takes into account in determining what he calls “the best interests of Australia” are necessarily as wide as the factors to be taken into account in deciding upon the exercise of powers conferred by ss 12 and 13.

160    Brennan J then discussed the value of consistency in administrative decision-making. This part of his Honour’s reasons has been cited many times. The following passage at 640 is perhaps not quoted as often, but in my opinion it encapsulates the point Brennan J was seeking to make about the value of a guiding policy to an otherwise broad statutory discretion:

There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.

161    In my opinion, what Brennan J is describing here has little or nothing to do with consistency of outcome: cf, more recently and in very different circumstances, Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173. If consistency of outcome were the subject matter of these remarks, then the emphasis in other parts of his Honour’s reasons about the need for individual consideration would be unnecessary. The kind of consistency that his Honour speaks of – and which in my opinion is also the subject of Deane J’s remarks in Nevistic – is consistency of approach to the exercise of a statutory discretion. That is how the “individual predilections” to which Brennan J referred are avoided. It might be observed that one of the differences between the kind of policy in Drake (No 2) and the early deportation cases, and the Citizenship Instructions, is that the latter are indeed often focussed on outcome – through directions such as “would not usually be approved unless…”

162    Brennan J then went on to discuss the need for a policy to be consistent with the statute containing the discretionary power. I return to this at [206] below.

The “cogent reasons” passage

163    The passage at 645 of Brennan J’s reasons in Drake (No 2) must rate as one of the most frequently cited passages in Australian administrative law. It is often reduced to the proposition that a Tribunal such as the AAT should follow executive policy unless there are cogent reasons to depart from it. Indeed that is how the Tribunal put it in [33] of its reasons. Put in that way, the proposition does not entirely reflect what Brennan J said, nor the context in which his Honour said it.

164    His Honour recognised (at 642) that, in point of law and principle, the Tribunal, being independent of the executive, was entirely free to decide not to apply ministerial policy:

The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.

165    His Honour then noted that if the Tribunal were to apply a policy it would be because of the assistance the policy could furnish in arriving at the preferable decision in the circumstances of the case. Brennan J includes in what is preferable the need for “consistency with other decisions in comparable cases”, and notes that a guiding policy is one of the “most useful aids in achieving consistency”. His Honour then turned to consider the competing values of the Tribunal’s independence from the executive, while nevertheless sitting within the executive branch rather than within the judicial branch:

The Tribunal is rightly required to reach its decisions with the same robust independence as that exhibited by the courts, but there is a material difference between the nature of a decision of the Tribunal reviewing the exercise of a discretionary administrative power, and the nature of a curial decision. The judgment of a court turns upon the application of the relevant law to the facts as found; a decision of the Tribunal, reviewing a discretionary decision of an administrative character, takes into account the possible application of an administrative policy.

The policy which guides the exercise of a discretionary administrative power may rightly seek to achieve an objective of public significance, and a balance may have to be struck between the achieving of that objective and the interests of an individual.

166    Next, his Honour takes account of the political nature of a policy such as that formulated to guide deportation decisions, and the responsibility of a Minister who formulates such a policy to Parliament for any policy that is formulated. It is unclear how far Brennan J takes his observations. There was nothing in ss 12 and 13 of the Migration Act which suggested any policy needed to be laid before Parliament. In my respectful opinion, his Honour’s reference to such policies being subject to Parliamentary “scrutiny” and “control” must be read as only a reference to the fact a Minister may be questioned about them in Parliament.

167    Emphasising that what he then goes on to say deals with a lawful policy, as his Honour had earlier described such policies, Brennan J then makes it clear that the Tribunal’s independence from government, the nature of its membership and its distinct function all make it inappropriate for the Tribunal itself to formulate any policy. Reading those passages now, it is interesting to reflect on the fact of that being a live question at all in 1979. It is difficult to imagine that could be a live question for the Tribunal today, which says something about how far executive policy has travelled in controlling administrative power, including of independent merits review Tribunals.

168    One of the additional points his Honour makes in these passages about the value of using policy to ensure consistency is to note that the decisions reviewed by the Tribunal are but a fraction of all the decisions made in exercise of a particular statutory power. That is a point likely to be generally applicable in all areas of the Tribunal’s review function. In that context what Brennan J says about the need for decisions which are reviewed by the Tribunal to be reviewed without applying “different standards and values” is an apposite one.

169    Brennan J then concluded (at 645):

These considerations warrant the Tribunal’s adoption of a practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary. If it were shown that the application of ministerial policy would work an injustice in a particular case, a cogent reason would be shown, for consistency is not preferable to justice. Injustice, in the context of ss 12 and 13 of the Migration Act, must mean a disproportion between the detriment suffered by those affected by the execution of a deportation order and the benefit which might reasonably be expected to result to the community at large or to particular individuals in the community if the order were affirmed.

(emphasis added)

170    I have emphasised certain aspects of this passage so as to direct attention to the kinds of matters Brennan J identified as giving content to the concept of “cogent reasons”. In the very next paragraph, Brennan J emphasised the need to ensure a decision did not produce injustice:

… the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case.

171    An important point to make is that the justice or injustice of an outcome for a particular individual is not to be measured against the contents of the policy. Otherwise, the purpose of the point Brennan J is making would be lost. Justice or injustice is not found within a policy: it is found by looking at the overall circumstances of an individual’s case, with the principal focus being on the purpose and context of the statutory power, not the executive policy framed to guide it. Otherwise, again, the policy becomes a rule of law.

172    Brennan J turned to examine the nature of the deportation policy then before the Tribunal:

Having regard to the terms in which the present statement of ministerial policy is couched, the fulness of consideration of relevant circumstances which it invites, and the unaffected range of discretion which it leaves for exercise in each case, it appears to me to be right to apply it in this case. It enjoins me, in arriving at my decision, to regard a conviction for drug trafficking as a graver factor tending in favour of deportation than convictions for many other kinds of offences. I propose to do so, because that course applies (in the sense that I have explained) the Minister’s policy.

(emphasis added)

173    I have emphasised one aspect of the description, for contrast with the Citizenship Instructions.

174    Brennan J then went through, in great detail, the evidence before the Tribunal which he considered weighed against deportation, and that weighed in favour of it, as well as measuring that evidence against the ministerial policy. He affirmed the deportation decision.

Nevistic v Minister for Immigration and Ethnic Affairs

175    Nevistic v Minister for Immigration and Ethnic Affairs [1981] FCA 40; 34 ALR 639 is a decision of a Full Court of this Court (Franki, Deane and Lockhart JJ). It was an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) concerning the review of a deportation order made under s 12 of the Migration Act, the same provision considered in Drake.

176    In Nevistic at 646-647, Deane J discusses the role and function of consistency in administrative decision-making. His Honour notes that inconsistency in treatment may involve an “element of injustice” where there is competition or correlativity between rights, advantages, obligations and disadvantages. In those circumstances, Deane J describes equality of treatment under the law as “an ingredient of modern concepts of justice and the rule of law”, and implicitly, if not explicitly, notes that executive policy formulated to guide an exercise of power can have a role to play in ensuring equality of treatment.

177    On the other hand, Deane J also notes that consistency is not a “hallmark” of justice. Referring to an earlier decision of Smithers J (Re Gungor and Minister for Immigration and Ethnic Affairs [1980] AATA 32; 3 ALD 225) Deane J notes the need for executive policy to be “appropriate and acceptable” for consistent application of it to serve the interests of justice for an individual. His Honour made it clear that the Tribunal is entitled to “disregard the dictates of a relevant policy of the government” and that the:

…desire for consistency should not be permitted to submerge the ideal of justice in the individual case.

178    I pause here to note, again, that this observation in 1981 may seem far away from the way the Tribunal currently approaches executive policy that is not rendered binding on it by statute (cf directions made by the Minister under s 499 of the Migration Act). Nevertheless these passages, and similar passages by Brennan J in Drake (No 2), and Bowen CJ and Deane J in Drake remain important. Consistency is one part of a two part equation: individual justice is the other part.

179    Deane J also notes, however, the need for “compromise, in the interests of good government, between the desirability of consistency in the treatment of citizens under the law and the ideal of justice in the individual case”. In my opinion, the compromise of which Deane J spoke was a compromise that, while giving due weight to government policy, favoured justice in the individual case. Ultimately, the function of merits review of an administrative decision is to decide what the outcome should be on that particular exercise of power, at that time, on the material, for the individual concerned. The exercise of power affects the rights and interests of an individual and it is to the rights and interests of that individual, in accordance with law and not executive policy, that the repository must direct herself or himself. Executive policy has a clear role to play, but Parliament has reposed a power, with the particular characteristics, constraints and considerations as the statutory context reveals, in a particular officer or Tribunal, to be exercised in respect of a particular individual. Those are the circumstances which predominate to govern the boundaries of the exercise of power. It is this notion which underlies the approach in Drake (No 2).

180    What occurred in Nevistic in the Tribunal’s decision-making is a good example of the competing considerations to which Deane J referred. In that case, the Tribunal was dealing (as it was in Drake) with the federal executive’s policy on deportation of those who had committed criminal offences. The deportation power in the Migration Act (then in s 12) was in the form of a broad discretion. The executive had formulated a policy to guide the exercise of that discretion, the relevant parts of which are set out in the reasons of Lockhart J in Nevistic at 648-649, and include statements of policy such as:

Where a person was convicted of an offence which indicated that the person had been involved in the production, importation, distribution or trafficking of illicit drugs, it is considered that the interests of the Australian community in their deportation are such that in almost all cases they heavily outweigh the considerations arising from the circumstances of the offender and the circumstances of people whose interests are affected by deportation.

181    Mr Nevistic had four young children, and the evidence was that they would either need to remain in Australia with their mother and be separated from their father, or the whole family would need to move, in circumstances where the children knew nothing of (the then) Yugoslavia or its languages. The Tribunal upheld the deportation order. It then said (see 652 in the reasons of Lockhart J):

In the present case, I think that, if it were not for the government’s policy on deportation, I may find in favour of Nevistic. The term of imprisonment is likely to have achieved a sufficient reform in Nevistic’s outlook to ensure that, hereafter, he does comply with the community’s laws. Thus, apart from the factor of government policy, the balance may lie against deportation, although I could not say that clearly it would so lie.

182    All three judges found the Tribunal’s decision was not affected by any error of law. Lockhart J’s description is consistent with the reasoning of the other two judges:

It has not been shown that the Tribunal so emphasized government policy as to abdicate its own function of independent review of the deportation order.

183    That conclusion can be readily understood when the Tribunal’s reasons, extracted above, are examined.

Minister for Immigration, Local Government and Ethnic Affairs v Gray

184    Minister for Immigration, Local Government and Ethnic Affairs v Gray [1994] FCA 225; 50 FCR 189) is a decision of a Full Court of this Court (Neaves, French and Drummond JJ), again in relation to an exercise of the deportation power under the Migration Act, but a different version of the Act to the one considered in Drake (No 2) and Nevistic. The statutory power remained broad, with preconditions concerning the nature of criminal offending which would render a person liable to the exercise of the statutory discretion, but no specific criteria to govern how the discretion was to be exercised. In common with the policies in Drake and Nevistic, the ministerial policy contained a list of criteria (expressly non-exhaustive) to be considered, and included a policy statement that:

The purpose of deporting a person who has been convicted of a criminal offence in Australia is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the community that the benefit accruing to the community as a whole by his/her removal outweighs the hardship to the persons concerned and his/her family.

185    In addition, there was evidence of a further statement made by the Minister, constituting an official ministerial response to some of the decisions made by the AAT to that point, where a discretion had been exercised not to deport an individual. The ministerial statement reiterated the government’s view that people who had been warned of the risk of deportation and then committed another serious offence “should expect that the warning be given serious weight” in consideration of his or her case, and second, that deportation “must be seriously entertained” in relation to people who were minors when they arrived in Australia where the person had “embarked on a life of crime as a child and who pursue[d] that life into adolescence or adulthood” and there was a likelihood of re-offending. Thus, there were two kinds of executive policy in play in this proceeding.

186    French and Drummond JJ formed the majority in Gray. Their Honours upheld the trial judge’s finding that the AAT had erred in its approach to the ministerial policy. Neaves J dissented on the basis his Honour was not persuaded the AAT had failed to weigh the various aspects of the ministerial policy in reaching its decision. In the course of their reasons for decision, French and Drummond JJ made some observations about the role of executive policy in administrative decision-making.

187    In defending the Tribunal’s decision and challenging the decision of the trial judge (who had set aside the Tribunal’s decision), somewhat ironically in the circumstances of the present application, the following submission is recorded (at 205) as having been made on behalf of the Minister:

Counsel for the Minister contended that the learned trial judge placed an overriding emphasis upon the criminal deportation policy. He erred, it was submitted, in concluding that the policy should have guided the Tribunal’s decision and in applying it as though it were a piece of legislation requiring nice analysis. Emphasis was placed upon the principle that each case must be determined on its own merits.

188    Noting that submission, the majority commenced their evaluation of the role of policy in administrative decision-making with a reference to the Full Court’s decision in Drake, adding:

The place of government policy in the Tribunal’s decision-making will depend upon the interests of good government and consistent decision-making on the one hand and the ideal of justice in the individual case on the other. But its decision must be the result of an independent assessment of all the circumstances of the particular case and not the uncritical application of policy: Drake (supra) at 421. This is nothing more than a statement of what is sometimes called the non-fettering principle which applies generally to statutory tribunals and decision-makers: see P Bayne, The Exercise of Discretion According to Policy Guidelines (1993) 67 ALJ 214.

189    The majority then recognised (at 206) two matters:

    A legislative intent or at least an “acceptance” that executive policies or guidelines will be developed can be assumed to inform the conferral of a wide statutory power; and

    High volume administrative decision-making, or decision-making with particular subject matter, may be susceptible to the need to ensure some consistency through the use of policy or guidelines.

190    French and Drummond JJ continued:

The imputed legislative contemplation of such policies for that purpose must be limited to those which are consistent with the general purposes and requirements, express or implied, of the legislation in question. They cannot be expressed to fetter the exercise of the relevant discretion. Recognition of legislative contemplation that policy guidelines will be made is consistent with the requirement that each case is considered on its merits. But within that framework, the existence and content of lawful policy may properly be regarded as a relevant factor which, because it is properly contemplated by the legislature, must be taken into account by the Tribunal. In the case of the power to deport non-citizens convicted of criminal offences, the existence and content of a lawful criminal deportation policy is a matter the Tribunal is bound to take into account and to give such weight as it thinks proper having regard to all the circumstances of the case.

191    The final two sentences may be open to more than one interpretation. In my opinion, read with what their Honours say earlier concerning the “imputed legislative contemplation”, and then what appears immediately following this passage at 206-208, I consider their Honours should be taken as saying that it will be an error of law for the Tribunal to fail to consider an executive policy promulgated to guide the exercise of a statutory discretion which, in its review, the Tribunal is called on to consider exercising. In Gray the Court was dealing with an appeal on a question of law from the AAT. It was not dealing with review pursuant to the Judiciary Act, nor were their Honours’ reasons published at a time when the developments attributed to Plaintiff S157 and the constitutional notion of jurisdictional error had become prominent.

192    The following statement in Gray at 207 also illustrates the position their Honours saw the Tribunal as occupying on the administrative continuum, as a body obliged to take into account (but not obliged to follow) the content of executive policy:

The Tribunal provides independent merit review, it is not a policy maker.

193    Their Honours then turned to the Minister’s submissions in the appeal before them. They accepted ministerial policies are not statutory instruments, and are not to be applied “with statutory nicety”. That observation is of some relevance to the present proceeding, where in my opinion the Tribunal applied the Citizenship Instructions as if they were a statute. The Tribunal was encouraged by the form, structure and content of the Citizenship Instructions to take this approach: that is part of the difficulty.

194    At 208, in a critical passage, the majority stated:

Policies are not statutory instruments. They prescribe guidelines in general, and not always very precise, language. To apply them with statutory nicety is to misunderstand their function. On the other hand, where the existence and content of such a policy is to be regarded as a relevant fact which the Tribunal is bound to consider, a serious misconstruction of its terms or misunderstanding of its purposes in the course of decision-making may constitute a failure to take into account a relevant factor and for that reason may result in an improper exercise of the statutory power. If a decision-maker, not bound to apply policy, purports to apply it as a proper basis for disposing of the case in hand but misconstrues or misunderstands it so that what is applied is not the policy but something else, then there may be reviewable error. In a limiting case a policy may be so broadly stated as to cover all considerations properly brought to bear on the exercise of the discretion. In such a case misconstruction of the policy may reduce to misconstruction of the statute or misunderstanding of its purpose.

195    In this passage, French and Drummond JJ speak of executive policy as a “relevant fact”, which the Tribunal is bound to consider. This is, in my opinion, a reference back to the passage I have extracted above. Their Honours are not here speaking only of a policy which the empowering statute expressly requires the Tribunal (or a first instance decision-maker) to take into account. Rather, their Honours here are speaking of an executive policy, enacted pursuant to the “imputed legislative contemplation” which their Honours had earlier described.

196     The majority found (at 211):

The policy statements were relevant factors which the Tribunal was bound to consider although not bound to apply so as to prejudice its independent assessment of the merits of the case.

197    Their Honours concluded:

The purpose of deportation set out in par 6 of the statement, required a consideration of the benefit accruing to the community as a whole from Gray’s removal and if there were a net benefit, then setting that off against the hardship to him and others. Understandably the policy statement gives primacy to the collective welfare of the Australian community and requires that to be identified and weighed against hardship to the offender. The structure of the Tribunal’s reasoning indicates that the Tribunal did not recognise that the weighing exercise was an important element of the policy it was purporting to apply. And this view is in accordance with the approach which the learned trial judge took to the Tribunal’s decision. For the reasons we have expressed earlier, we are of the opinion that his Honour was correct in treating the Tribunal’s approach to the application of the policy which it purported to apply as one which involved an error of law. Further, we consider that his Honour was substantially correct when he held the determination of the level of acceptable risk by reference to factors adverse to the applicant and without reference to the level of rehabilitation achieved and potential as a role model, involved error. It is not necessary to go so far as to say that the Tribunal’s approach in this regard was manifestly unreasonable. It suffices to say that it failed to have effective regard to those factors which it was bound to take into account in the assessment process.

198    To emphasise, the deportation policy in Gray was a further evolution of the deportation policy in the earlier AAT cases. It was not one which had any statutory force: it was an executive policy. Nothing in the Migration Act compelled the Tribunal to take it into account. In that sense the nature of the policy, in terms of its source of authority and its relationship to the empowering statute, was the same as the Citizenship Instructions.

199    There are many subsequent cases which have examined Gray, and the other decisions to which I have referred. Where necessary, I consider those subsequent cases below. The purpose of reviewing the authorities to this point, and no further, is to illustrate what I consider to be the foundational principles about the role and function of executive policy in the decision-making of the AAT, which have not subsequently altered, although judicial views have differed about their application in particular contexts.

Pulling the threads together

200    The structure, nature and content of a particular executive policy may increase the risk that in applying it, a decision-maker may cross the boundary between lawful and unlawful use of executive policy in exercising a statutory power. The more general a policy, the more likely it is to invite consideration of the “fullness… of relevant circumstances” and leave an “unaffected range of discretion” for exercise, to use the words of Brennan J in Drake (No 2). The more prescriptive and rule-like the policy, the more likely it is to encourage decision-makers to feel compelled to adhere to each part of it, follow its structure with strictness and approach the policy as if it formed part of the statute. Further, the more likely the policy is to stray into directing decision-makers as to the outcome, or “usual” outcome, of an exercise of power.

201    It can be seen from the authorities that there are a number of ways in which the dividing line between a lawful and unlawful approach to the use of a policy has been expressed:

    A decision must not be “so truncated by a policy as to preclude consideration of the merits of specified classes of cases” (Drake No 2 at 640);

    A decision-maker must not “abdicate” her or his exercise of power to the terms of a policy (Nevistic: Franki J at 642, Deane J at 646; Lockhart J at 651-652; Gray at 205-206; Hneidi at [42]);

    The policy should not “superimpose” a requirement or requirements that prevent a decision-maker from being satisfied of matters set out in the statute (Green at 9);

    The policy should not create a requirement or guideline that has an arbitrary character, in the sense of not being able to be justified or understood by reference to the statutory power in its context (Green at 10); and

    A policy statement should not be applied so as to prejudice a Tribunal’s independent assessment of the merits of the case (Gray at 211).

202    There may be circumstances where the value of equality of treatment that policy can support, and the legitimate role for the executive in forming policy to guide statutory power that is based on political considerations, prevail over the interests of the individual, or individual justice. So much can be accepted as an appropriate consequence of the relationship between different branches of government.

203    Nevertheless, the core authorities to which I have referred make it clear that if, and when, the AAT makes a decision on a merits review which has this outcome, it is a conscious choice, being fully aware that it has a choice, and having carefully and thoroughly considered whether an outcome of that kind is the correct, or the preferable, decision in the circumstances of that individual.

204    Finally, I consider it is clear from Drake (No 2) and from Gray, that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant fact, or factor, for the Tribunal to take into account in performing its review task. It will be an error of law if it fails to do so, or if it misunderstands or misconstrues the content of the policy in a way that is material to the exercise of power in its review: Gray at 208; Drake (No 2) at 645-646, Elliot v Minister for Immigration and Multicultural Affairs [2007] FCAFC; 156 FCR 559 at [23]-[24], [41]-[42], Braganza v Minister for Immigration [2003] FCAFC 170 at [31]. To say this much is not to contradict the statements I have set out in [201] above, which are all directed to the appropriate limits on the role of executive policy, once taken into account.

205    If this were not the case, the promulgation of executive policy outside circumstances where the empowering statute expressly provides for, or recognises, the function of such a policy would enable the executive to create what the High Court described in Kirk [99] (albeit in a different context) as “islands of power immune from supervision and restraint”. If, as French and Drummond JJ noted, legislative schemes conferring broad discretionary power are properly to be construed and understood as incorporating a legislative imputation that such discretions will be capable of being guided by executive policy, then the legal framework for judicial supervision of statutory powers exercised by reference to executive policy must incorporate a basis for that supervision. That is in my respectful opinion what French and Drummond JJ recognised in Gray.

Lawfulness of a policy

206    Again, 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.

Plaintiff M64 and the role of policy

211    I do not consider anything said by the High Court in Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173 compels me to reach a different conclusion on this application. In Plaintiff M64, the visa criterion in issue was contained in the Migration Regulations 1994 (Cth) (cl 202.222(2) of Sch 2 as it then stood), which provided that the Minister must be satisfied:

there are compelling reasons for giving special consideration to granting the applicant a permanent visa.

212    A policy had been promulgated, the relevantly contentious aspect of which was that processing “priorities” would be applied to the fixed number of available places, and the lowest priority was to be given to a class of visa applicants that included individuals who arrived in Australia as irregular maritime arrivals before 13 August 2012.

213    The applicant contended this policy was inconsistent with the Migration Act and the regulations made under it. The Court rejected that argument. The plurality said at [50]:

The breadth of the evaluative judgment authorised by cl 202.222(2) can accommodate a consideration of the manner in which the proposer of a visa came to Australia. Consideration of that factor as an aspect of government policy is not inconsistent with either the text or purpose of cl 202.222(2).

214    There was also an argument made that the delegate had applied the applicable policy inflexibly, without proper regard to the circumstances of the individual case. That argument was also rejected, the plurality finding at [54]:

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.

215    At [68]-[69] Gageler J said:

It is open to the Minister in the exercise of non-statutory executive power to lay down a policy for the guidance of his or her delegates in making those determinations. Indeed, it is inconceivable that the Minister would not do so. In Nevistic v Minister for Immigration and Ethnic Affairs, Deane J emphasised the importance of the adoption and consistent application of policy to the avoidance of substantial injustice in administrative decision-making, which involves “competition or correlativity between rights, advantages, obligations and disadvantages”. Each applicant must always be entitled to have his or her application for the exercise of a decision-making power determined on its merits. But the merits of an application cannot always adequately be considered by reference to the circumstances of the applicant alone.

Where, as here, the statutory question is whether the decision-maker should be persuaded that there are compelling reasons for giving special consideration to granting one of a finite number of permanent visas to a particular applicant, the correct or preferable decision in the individual case cannot be divorced from the correct or preferable decision across the range of cases in which an exercise of that decision-making power can be expected to be sought. Blinkered and individualised decision-making would be a recipe for maladministration.

(citations omitted)

216    The difference between Plaintiff M64 and the present case is apparent. There is no fixed limit to citizenship applications by children. The legislative criteria are not evaluative in nature in the way cl 202.222(2) was. Further, the proposition is not that a policy cannot be formulated to guide the exercise of the power in s 24(1), read with the subsidiary discretion in s 24(2). What is in issue (in ground 2) is the structure and content of the Citizenship Instructions as they stand, and the Tribunal’s application of them (in grounds 1 and 3).

Resolution of ground 1: best interests of the child

217    The applicant contends, and I accept, that the Tribunal erred in confining its consideration of the “best interests” of G to the matters set out at paragraph [35] of its decision, said to have been adopted from the Preamble to the Convention on the Rights of the Child. To recall, in [35] the Tribunal states:

Although the best interests of the child is not defined in the Convention on the Right of the Child, the Preamble recognises that every child is entitled to protection from violence and abuse; families should be respected; and the child should be able to preserve his or her identity.

218    It is the fact that the Tribunal restricted its consideration of G’s best interests to the matters set out in [35]. While the Minister contended this was not the case, he did not point to any aspects of the Tribunal’s reasoning capable of establishing the contrary.

219    The phrase “best interests of the child” encompasses a range of matters far wider than these three matters, and consideration of a child’s best interests requires a decision-maker actively to engage with what is likely to occur to a child, and to articulate, with some degree of specificity, how the child’s interests are likely to be affected. The task was captured by Allsop J (as his Honour then was) in Perez v Minister for Immigration & Multicultural Affairs [2002] FCA 450; 119 FCR 454 at [118]-[120]:

In Wan, the Full Court found that the failure of the decision maker to identify anywhere in his written reasons what the best interests of the children indicated, was of particular significance: see Wan at 138 [20]. Also, the Full Court at [30], set out elements of the best interests of the children which had not been elucidated by the Tribunal. Here, nowhere did the delegate identify for himself those interests, or what they called for. It should be said at the outset that this is not some inflexible rule of law, or requirement for mechanical incantation. It is a logical and appropriate starting point if the task is to be essayed reliably. An appreciation of the facts set out at pars 8 to 11 of the reasons ([77] above) and of the contents of the “compassionate statements” referred to in par 17 of the reasons ([79] above) does not mean that from that material the bests interests of the children have been identified and appreciated, and taken into account as a primary consideration. It is not just a matter for “compassion” as par 17 would tend to indicate was the view of the delegate. “Compassion” is participation in another’s suffering, fellow-feeling, sympathy, pity inclining one to show mercy or give aid: The New Shorter Oxford Dictionary (1993). The interests of the children are considerations in respect of their human development – their health, including their psychological health and happiness, their social and educational development as balanced, nurtured young citizens of this country. This is not a check list, but an illustration of the kinds of considerations relevant to these young people which form their best interests in connection with a decision whether to keep their father away from them in gaol, save for visits, or whether to release him, on appropriate conditions if thought necessary, so that he may be close to them (as to two, as a father and step-father) or freely available to spend time with them (as to the other two).

The task of the taking into account of these best interests is not satisfied, or, in a sense, even begun, by identifying facts which throw up the need for the identification and elucidation of these interests or by recognising compassion in respect of the circumstances of the children. The delegate did not say that he had taken the children’s interests into account as a primary consideration. That failure of expression would not be fatal if he otherwise displayed an appreciation of the kinds of matters to which I have referred. He did not.

It is not enough to say, as in a sense the respondent submits, that all this is found in pars 8-11 and 17 of the reasons (see [77] and [79] above). It is not. The delegate certainly took facts concerning the family and children into account. He recognised, and expressed himself in par 17 as balancing it, the element of compassion. But that is not to undertake the necessary task, which is not based on compassion or recognition of suffering. The task is a humane and analytical one: of identifying what are the best interests of the children, and then considering them in the way the law requires.

220    The Tribunal did not take this approach. It had considerable evidence before it about G’s health issues, including his psychological health and his level of settlement in his present arrangements, together with what made him anxious and unsettled. It had evidence from his school principal and from his paediatrician. It did not examine any of these in the context of examining G’s best interests, confining itself to one paragraph ([36] of its reasons) that his mother was capable of protecting him from violence or abuse and he would have no difficulty travelling to Albania. Even on that very limited consideration, and relevantly to some of the other grounds, the Tribunal has ignored the Refugee Review Tribunal’s findings about protection. If that omission is put to one side, then it remains apparent the Tribunal’s consideration was wholly inadequate. It did not address what was in G’s best interests in terms of his health, and his disabilities. It did not address what was in G’s best interests in terms of his educational development, including the evidence before it that G does not speak Albanian. It is indisputable that citizenship provides a secure and indefeasible form of access to all the benefits enjoyed by members of the Australian community, including health and education. While at any given point in time those benefits may or may not be available to persons with a migration status of permanent resident, the conferral of those benefits relies much more heavily on the gift of the executive, whether through policy, or through legislative instrument.

221    The Minister’s main contention against ground 1 succeeding was somewhat ironic. It was that since the statute itself did not require consideration of the child’s best interests, and only the policy required such consideration, then the error (if there was one) could not be of a jurisdictional kind because the best interests of the child were not a “mandatory consideration” in the exercise of the power under s 24 of the Citizenship Act. The Minister relied on what was said by Buchanan J in Budilay at [22]-[24], and also the Full Court decision of Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184 at [22]-[25].

222    The Minister’s contention should be rejected. I have explained my conclusion in principle about this at [204]-[205] above, by reference to Gray.

223    Contrary to what appeared to be the premise of the Minister’s submissions, ground 1 in the amended originating application is not expressed as a “mandatory considerations” ground. The ground is expressed as an error in the understanding of what the policy in the Citizenship Instructions encompassed by its identification of the “best interests of the child” as a factor. The Tribunal chose to consider this as a factor, and indeed in my opinion (consistently with what I have said at [204]-[205]) the Tribunal was required to take into account as part of its review the executive’s policy promulgated to inform the exercise of the discretion under s 24 of the Citizenship Act.

224    The Tribunal’s approach can be characterised as involving an error of law, within the terms of s 5(1)(f) of the AD(JR) Act. As the applicant submitted, he invokes this Court’s jurisdiction under both the AD(JR) Act and the Judiciary Act, and it is only the latter, through s 39B (and its relationship to the terms of s 75(v) of the Constitution), which has been held to involve the concept of “jurisdictional error”. The Tribunal’s error of law was identified by the applicant as a misapplication or misunderstanding of the Citizenship Instructions in that they listed a number of matters, to which the Tribunal gave incomplete consideration.

225    Having decided to apply the Citizenship Instructions as executive policy, the Tribunal was (as the Full Court in Gray made clear) required to apply a correct understanding of executive policy, and not misconstrue it. The Citizenship Instructions (at section 18.2) require a decision-maker, relevantly, to “assess the best interests of a child in relation to: …decisions under the Act directly relating to the child”. Section 18.3 sets out eight factors which are likely to be relevant in assessing best interests. The list does not purport to be exhaustive and does not include some of the matters to which Allsop J referred in Perez, and to which the Full Court referred in Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; 107 FCR 133. Nevertheless, it is apparent the Tribunal did not consider even these eight factors – for example, the degree of G’s integration into the Australian community.

226    There is nothing in Buchanan J’s decision in Budilay which precludes this conclusion, or is inconsistent with it. In Budilay, the challenge was to the particular way in which the Tribunal in that case had approached its assessment of the best interests of the child. Buchannan J found (at [24]) that the Tribunal had adequately stated its conclusions, and rejected an argument on behalf of the applicant which his Honour saw as tantamount to reading Art 3 of the Convention on the Rights of the Child into the terms of s 24 of the Citizenship Act. That is not the way the argument is put here.

227    Nor do I consider the Full Court’s decision in Kaur requires me to reject the first ground of review, as the Minister submits.

228    Kaur concerned an application for a skilled visa. The applicant alleged the Tribunal had misconceived its function or misapplied public interest criterion 4020(4) of the Migration Regulations, by reason of the way it approached the “best interests of the child” for the purpose of assessing whether there were compassionate and/or compelling interests required to be considered to avoid the usual disqualifying effect of PIC4020 where a visa applicant has given, or caused to be given, a bogus document to the Minister in connection with a visa application. In that case, the visa applicant sought to challenge the consideration by the Tribunal of the best interests of the son of the visa applicant, in circumstances where her visa application might be rejected by reason of PIC4020, unless there were compelling circumstances.

229    At [21] and following, the Full Court rejected the applicant’s submissions. The first basis was that the submissions involved a premise which the Full Court held to be incorrect: namely, that the Tribunal was under an obligation to apply the Convention. The Full Court stated:

In the absence of express provision, unenacted international obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error: Snedden v Minister for Justice [2014] FCAFC 156; (2014) 230 FCR 82 (Snedden) at [147] (Middleton and Wigney JJ, Pagone J agreeing at [242]); Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [101]; Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875 (Le) at [59]; AB v Minister for Immigration and Citizenship [2007] FCA 910; (2007) 96 ALD 53 at [22]. There is no such express provision in PIC4020(4) or in the Act.

230    The applicant’s argument here is not that Art 3 of the Convention on the Rights of the Child was a mandatory consideration for the Tribunal: his argument is that, having decided to take the policy in the Citizenship Instructions into account, and having embarked on a consideration of what was in G’s best interests, the Tribunal was required to understand correctly what was involved in this concept, which it failed to do.

231    It may also be accepted, as French J (as his Honour then was) said in Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875 at [59] that the Jumbunna Coal Mine rule of construction (Jumbunna Coal Mine NL v Victorian Coal Miners’ Association [1908] HCA 95; 6 CLR 309 at 363) does “not extend to writing into statutes conditions, expressive of treaty obligations, which would narrow the powers that Parliament has conferred upon administrative or ministerial decision-makers”. Nor is this what the applicant seeks to do: his contention operates through the prism of the Tribunal having decided to apply executive policy which renders the best interests of the child such an important consideration that a whole chapter of the policy is devoted to it.

232    At [25] in Kaur, the Full Court refers with approval to a decision of Tracey J in AB v Minister for Immigration and Citizenship [2007] FCA 910; 96 ALD 53 at [27], as authority for the proposition that by taking account of the Convention on the Rights of the Child, a Tribunal “would not in any event fall into jurisdictional error by misunderstanding the full extent or purport of the [Convention] obligations”. Accepting for the moment that a misunderstanding by a decision-maker about the “full extent or purport” of Australia’s international obligations might not be a jurisdictional error, where executive policy directs the attention of a decision-maker to a particular aspect or component of Australia’s international obligations and instructs decision-makers to give that aspect or component some prominence in their consideration of whether or not to exercise a statutory power, in my respectful opinion the situation is rather different.

233    In Minister for Foreign Affairs v Lee [2014] FCA 927; 227 FCR 279 at [59], Robertson J explained his view of Gray (especially at 208) as involving two or possibly three categories of error. In Lee, especially at [59]-[61], Robertson J explains what his Honour sees as some complexities in the authorities between circumstances where a policy might be characterised as a mandatory consideration, and circumstances where it may not, but where there will nevertheless be reviewable error if a policy is misunderstood or misconstrued. Robertson J distinguishes two situations: first, where a Tribunal may be “expressly required to regard itself as bound by the principles formulated by the Minister” (my emphasis) and secondly, where it is “permissible” for a Tribunal to take relevant government policy into account in making a decision but it was under no statutory duty to regard itself as bound by the contents of the policy.

234    An example of the first situation, and the possibility of a considerations argument arising, is my own decision in Williams v Minister for Immigration and Border Protection [2014] FCA 674; 226 FCR 112 at [22]-[43], involving a “Ministerial Direction” given under s 499 of the Migration Act, where there was a statutory obligation to “comply” with such a direction.

235    In relation to the second situation (which is the example provided by the Citizenship Instructions) it seems to me Robertson J may be prepared to accept that if a Tribunal purports to adopt and apply a (permissible) promulgated policy, then it must understand and construe that policy correctly, at least in matters that are material to the exercise of power. If this is the proposition, I would respectfully agree, for the reasons I have set out. I consider, further, as I have set out at [204]-[205], that the AAT is in these circumstances, obliged to take the executive policy into account (but need not adhere to it). I have set out at [201] above a summary of what I consider to be the limits on the way the Tribunal can allow executive policy to influence its exercise of power.

236    The contention in Gray at 208 that a serious misconstruction of the terms of a policy, or a misunderstanding of its purposes, is capable of constituting a reviewable error was applied by the Full Court of this Court in Elliot v Minister for Immigration and Multicultural Affairs [2007] FCAFC; 156 FCR 559 at [41] (Ryan, Tamberlin and Middleton JJ). In Braganza v Minister for Immigration [2003] FCAFC 170 at [31] (French, Sackville and Hely JJ), the Full Court also recognised the obligation of the Tribunal to take executive policy into account.

237    It is correct that some other authorities have described the error as a considerations error (see for example Holden Limited v Chief Executive Officer of Customs [2005] FCAFC 27; 141 FCR 571 at [38] also citing Gerah Imports Pty Ltd v Minister for Industry, Technology and Commerce [1987] FCA 456; 17 FCR 1 at 15), and given what I have set out above as the reasoning of French and Drummond JJ in Gray, it appears their Honours were prepared to see in the conferral of a broad discretion an implication that executive policy may be formulated to guide the discretion and should be taken into account. More may need to be done to reconcile entirely what their Honours said with the now entrenched approach to a considerations error derived from Mason J’s analysis in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39-40, but that task need not be undertaken here because the applicant does not put the error as a considerations error.

238    If, as Brennan J outlined in Drake (No 2) and has been consistently accepted, the enactment of an executive policy to inform and guide an exercise of statutory power means that a decision-maker should not only consider the policy, but follow its tenor unless the interests of justice of the individual case require otherwise, it would be antithetical to these principles if a decision-maker’s exercise of power were not held to miscarry if the decision-maker ignored or overlooked such a policy altogether. If that is the case, then, as the Full Court in Gray noted, it is to be expected that a decision-maker would correctly understand the policy and its operation, and not misconstrue it. Otherwise, the exercise of statutory power would become on the one hand entirely untethered from the executive policy enacted to guide it, and on the other hand untethered from judicial supervision of the exercise of a statutory power. All of this is premised of course, on the existence of a valid executive policy that does not overreach the boundaries of providing guidance only. It is also premised on an exercise of power where the decision-maker does not abdicate that exercise to the terms of executive policy.

239    It is also true that there are decisions which have found no error in the misconstruction of a policy. Black v Minister for Immigration and Citizenship [2007] FCA 1249 concerned a visa cancellation decision where the Minister had, pursuant to a direction made under the Migration Act, decided there was no need to consider the best interests of the child (because the applicant had no children) in a cancellation decision under s 501(2) of the Migration Act. Besanko J found (at [26]) that where a decision to cancel a visa is made by the Minister personally, as opposed to his delegate, jurisdictional error is not established simply by showing the Minister misconstrued the relevant policy; it must be shown that the Minister acted outside the terms of the statutory power. I accept that where there is a personal power conferred directly on a Minister, and there also exists a mandatory direction from the Minister to her or his delegates about how to exercise the similarly expressed, but non-personal, discretion, it is difficult to see how the promulgator of the mandatory direction can be said to exceed her or his jurisdiction if she or he misunderstands the meaning of the direction. After all, the Minister is – in point of law in any event – the author of the direction. That also appears to be the approach taken by Wilcox J in Nikac v Minister for Immigration, Local Government and Ethnic Affairs [1988] FCA 670; 20 FCR 65 at 78. These kinds of circumstances may well lead to the kind of conclusion reached by Besanko J, especially where the standard of review is jurisdictional error.

240    In summary, I am not persuaded that the authorities on which the Minister relied require me to reach a conclusion different to that I have expressed. The circumstances in those cases were different, with different arguments. A misunderstanding or misapplication of the second category of executive policy, to which French and Drummond JJ referred in Gray at 208, is capable of constituting a reviewable error, and certainly a sufficient kind of error for the purposes of s 5(1)(f) of the AD(JR) Act. Gray itself was an s 44 appeal from the AAT: see Gray at 200. Such an appeal is “on” a question of law, which is again sufficiently equivalent to s 5(1)(f) of the AD(JR) Act: see the examples given by the Full Court in Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [123]-[125].

241    Further, as I have noted above, at [36]-[37] of its reasons it is apparent the Tribunal imposed an onus on G to demonstrate that it was in his best interests for his citizenship application to be approved, where he had no such onus, and indeed the Citizenship Instructions imposed no such onus. The Tribunal’s language, read fairly and in context, insists that an applicant do more than bring forward persuasive evidence or material to support an application. G had done this: there was no shortage of evidence, including objectively independent evidence, about what, as a child, was contended to be in his best interests. The Tribunal’s reference to “has not demonstrated” cannot sensibly be seen as referring to a failure to produce material. Rather, it refers to the Tribunal’s impression that G had a burden of proof to discharge, which he did not: see McDonald v Director-General of Social Security [1984] FCA 59; 1 FCR 354 at 357-8 (Woodward J); 365-6 (Northrop J); 368-9 (Jenkinson J); Singh v Minister for Immigration and Border Protection [2018] FCAFC 52 at [144]. I do not identify this matter as a separate error, as it was not relied on by the applicant as a ground of review. Nevertheless, the way the Tribunal approached its assessment of the material before it was to require G (at [37]) to “demonstrate” that it is “in his best interests that his application for Australian citizenship be granted by conferral at this time”. The Citizenship Instructions (at section 5.12.5) only required the Tribunal to “consider the full circumstances of the case, including the best interests of the child”, and no more than that. This is further evidence of the Tribunal’s misunderstanding of the policy it took into account.

242    It was an error of law for the Tribunal to misunderstand the executive policy it was obliged to take into account, by failing to address all of the matters set out in the Citizenship Instructions in Chapter 18 (“Best interests of the child”), read with sections 5.12.2 and 5.12.5, in its assessment of G’s citizenship application.

243    I do not need to determine whether this error was of a jurisdictional kind. There may be force in the view that it is not. However, the applicant can succeed on this ground under the AD(JR) Act and that is sufficient.

Resolution of ground 2: unlawful policy

244    The component of the Citizenship Instructions which is challenged as being unlawful is that contained in 5.12.5. To recall the context of this part of the Citizenship Instructions, two additional, negative, hurdles are placed in the way of a child applicant by the policy:

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

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

245    In plain terms, the policy instructs a decision-maker to ask:

(1)    Can an applicant avoid refusal because she or he satisfies one of the policy’s stated criteria?

(2)    If not, is there something unusual about the applicant’s circumstances that favours approval of the citizenship application?

246    The applicant’s unlawfulness ground is confined to the imposition by the Citizenship Instructions of the requirement for a child applicant to demonstrate “significant hardship or disadvantage” if she or he were not to be granted citizenship. The applicant submits there are three reasons this aspect of the policy is invalid:

(1)    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 Citizenship Act;

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

(3)    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.

247    I accept that the Citizenship 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.

248    The applicant’s submissions are supported by reference to the extrinsic material. I have previously expressed the caution needed when dealing with extrinsic material: see Regis Aged Care Pty Ltd v Secretary, Department of Health [2018] FCA 177 at [48], [90]; Friends of Leadbeater’s Possum Inc v VicForests [2018] FCA 178 at [53]-[57]. And see Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 (French CJ, Hayne, Crennan, Bell and Gageler JJ) at [39], quoting the Court’s judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27. Here, both parties sought to rely on the explanatory memorandum to the 2005 Citizenship Bill. I accept that it may be useful to examine the terms of the explanatory memorandum to ascertain the “mischief” and purpose of leaving the power as a wide discretionary one: see for example the comments of Mason P in Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380 at 399. Whether or not one should go beyond that to use extrinsic material to determine meaning (notwithstanding the terms of s 15AB(1)(b) of the Acts Interpretation Act 1901 (Cth)) is another question. Certainly, a court is not obliged to do so: see Brennan v Comcare [1994] FCA 360; 50 FCR 555 at 573 (Gummow J).

249    The relevant extract from the explanatory memorandum on which the applicant relied was as follows (with the applicant’s emphasis):

The purpose of this subsection is to retain the existing discretion (under Section 13 of the old Act) of the Minister not to approve an application in certain cases.

This discretion has been in existence since the inception of the Act in 1948.

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

Persons who satisfy the eligibility criteria are generally approved to become citizens. However, it is conceivable that a person could meet the criteria but nevertheless it may not be in the public interest for that person to become an Australian citizen. An example may include a person whom the Australian community would consider as a person who incites hatred or religious intolerance. That person may not necessarily have been convicted of specific offences and may not necessarily fall strictly into the category of refusal on the basis of the good character requirement, but could be within this discretion.

250    The applicant submits, and I accept, 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. No doubt there will be circumstances where a particular application may present considerations which are appropriate for a residual discretion to refuse, and that is clearly the purpose of s 24(2). To make that observation is not to import into s 24 a public interest criterion, by reason of the references to that concept in the explanatory memorandum.

251    Rather, the reference in the explanatory memorandum to the public interest, read with the text and context of s 24 in the wider scheme of citizenship by conferral in the Citizenship Act, is consistent with a characterisation of the power in s 24(2) as a broad, residual discretion, intended by Parliament to inform the principal statutory task in s 24(1).

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.

253    Albeit in a different context, the dangers which are associated with repetitive and detailed guidelines or guidelines which encourage giving particular weight to particular factors, and the centrality guidelines might attach to matters that are given no significance (or no mention) in a statutory scheme, were the subject of observations by the members of the High Court in Wong v R [2001] HCA 64; 207 CLR 584 at [31] (Gleeson CJ); [44], [65], [71], [74] (Gaudron, Gummow and Hayne JJ); [130], [132] (Kirby J); [165] (Callinan J).

254    In Wong, Gleeson CJ noted that guidelines with specificity and prescription can have the “effect” of constraining a wide discretion (there, the sentencing discretion), and also of elevating factors that form no part of the statutory approach. The same can be said about many aspects of the Citizenship Instructions, as I have noted earlier in these reasons. Specifically, and for the purposes of ground 2 of the application, the observations in Wong are apposite to the introduction of the requirement for “significant hardship or disadvantage” by section 5.12.5.

255    At [85], the plurality in Wong quoted with approval a passage from Winneke P in the Victorian Court of Appeal:

Further, as Winneke P rightly pointed out in R v Ngui (149):

“Experience in other areas of the law has shown that judicially expressed guidelines can have a tendency, with the passage of time, to fetter judicial discretion by assuming the status of rules of universal application which they were never intended to have. It would ... be unfortunate if such a trend were to emerge in the sentencing process where the exercise of the judge’s discretion, within established principles, to fix a just sentence according to the individual circumstances of the case before him or her is fundamental to our system of criminal justice.”

(citations omitted)

256    Whilst that is a statement made in relation to guidelines articulated by courts, it is not difficult to see how statements from the executive to administrative decision-makers are capable of having the same effect.

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”.

258    As I have noted above, I do not consider there is anything in Plaintiff M64 which precludes this result. Nor do I consider that the observations of the Full Court in Singh at [43]-[46], nor Buchanan J in Budilay, nor Jacobson J in Shams v Minister for Immigration and Citizenship [2011] FCA 1505; 199 FCR 423, preclude this conclusion. An argument of this kind was not developed in any of those cases.

259    In Shams, at [64]-[66], Jacobson J said this about the construction of the discretion in s 24 in the context of the Citizenship Act as a whole:

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.

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.

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.

260    Reference to such matters is, with respect, entirely legitimate and appropriate. An understanding of what the legislative scheme means by the concept of citizenship is important to any construction of the powers conferred, but also to the lawfulness of any executive policy. The kinds of matters to which Jacobson J refers are consistent with what is in the explanatory memorandum about the need for a residual discretion. None of these kinds of matters have any rational connection with the imposition, by executive fiat, of a precondition in the nature of proof of “significant hardship and disadvantage” flowing from a refusal to grant citizenship. That matter is extraneous to the scheme of the Citizenship Act.

261    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

…

(emphasis added)

262    The Tribunal’s exercise of power miscarried by applying this aspect of the policy as a central and material basis for its exercise of power, and an error of this kind is plainly jurisdictional. It may be appropriate for there to be a declaration to that effect. The parties will have an opportunity to make submissions on this matter.

Resolution of ground 3: fettering/inflexible application of policy

263    The applicant relies on the AD(JR) Act, s 5(1)(e), read with s 5(2)(f) – namely, that there was an improper exercise of a discretionary power under an enactment in accordance with a rule or policy without regard to the merits of the particular case.

264    This ground is, as I understand it, an alternative to ground 2, and premised on a conclusion that the “significant hardship or disadvantage” aspect of the Citizenship Instructions is a lawful policy. I consider the ground on that basis, although I have concluded that aspect of the Citizenship Instructions is unlawful.

265    I have set out above why what the Tribunal said about Drake (No 2) is incomplete and inaccurate. The position is more nuanced than the passage in the Tribunal’s reasons suggests.

266    The passage in Drake (No 2) to which the Tribunal referred cannot become a mantra for decision-makers to avoid performing their task with active intellectual consideration of the material before them in a fulsome way, and not only in accordance with a structure imposed on the decision-maker by an executive policy. A Tribunal must give active intellectual consideration to what is the correct or preferable decision on the basis of all the material before it, in all of the circumstances before it. One of those circumstances is the existence, and content, of an executive policy.

267    As Gageler J noted in Plaintiff M64, ensuring consistency through the use of executive policy may assume particular importance in high volume decision-making, or decision-making where there is competition for a finite number of rights or interests that can be created. However, even in those circumstances, as Gageler J also recognised (at [73]) policy must not encourage rigidity, and as the High Court noted in a different context in Wong, guidelines should not be outcome focussed, but remain method focussed.

268    Buchanan J also recognised in Budilay at [11] that the Citizenship Instructions “are not intended to dictate how the discretion under s 24 of the [Citizenship] Act must be exercised, whether generally or in any particular case”. The applicant expressly put a submission to this effect to the Tribunal in his written contentions prior to the hearing. The applicant submitted:

The Tribunal is therefore not bound by the ACls and, while entitled to take them into account, it must be careful not to adopt an uncritical application of the policy statements in the ACls. The Tribunal should not consider its review function to be unduly fettered or constrained by the policies contained in the ACls.

269    As I have sought to explain, the applicant’s submission reflects the law. I do not consider the Tribunal substantively adopted such an approach. I consider it did adopt, in a wholesale fashion and uncritically, the method for arriving at an outcome it saw the Citizenship Instructions as setting out. Indeed it adopted as its starting position, and only position, that G’s application should be refused unless the Tribunal was persuaded his circumstances fell within the four corners of the Citizenship Instructions. It structured its entire reasons around the structure of the Citizenship Instructions. It considered, in a narrow and limited way, only what the Citizenship Instructions set out. Its approach to G’s best interests is a good example, but not the only one. Consciously or unconsciously, its reasons disclose it imposed a burden of proof on G. Since the Refugee Review Tribunal’s decision did not fit easily within the structure of the Citizenship Instructions, and including the requirement in the Citizenship Instructions to show that his case was “unusual” or “so unusual” as to justify departing from the policy, the Tribunal mostly ignored it, although the findings and outcome of the Refugee Review Tribunal decision bore materially on many of the issues the Tribunal considered.

270    In contrast to Nevistic, in my opinion, the Tribunal in this case has abdicated its function entirely to the dictates of a policy which seeks to replace the Citizenship Act with a prescriptive regime that on its face tends against the approval of citizenship applications, that not being a bias disclosed or supported by the text, context or purpose of the Citizenship Act.

271    I accept that a judgment whether an administrative decision-maker has so closely adhered to an executive policy that she or he has fettered the exercise of a broad statutory discretion involves elements of assessment and evaluation on which reasonable judicial minds might differ. The differences between the Full Court and the primary judge in Braganza are but one example. That said, even if some evaluation is involved, in the end there is only one correct answer to the question on judicial review whether a power has been lawfully exercised or not: see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [18] (Kiefel CJ), [59]-[60] (Gageler J), [76] (Nettle and Gordon JJ).

272    In the present application, I find that the Tribunal’s reasons involve an inflexible application of the policy because of:

    The language used by the Tribunal at [4] and [5] to frame its view of its task on review;

    The failure to identify its task as being the exercise of the power in 24(1) read with the discretion in s 24(2), but that discretion not controlling the whole of the task under s 24(1);

    The way the Tribunal structured its reasons;

    The absence of consideration of factors outside the Citizenship Instructions;

    The adoption of the premise, underlying its entire reasoning, that it should “usually not approve” a citizenship application from a child under 16 unless the conditions set out in the Citizenship Instructions were met;

    The emphasis placed in the reasons on demonstrating compliance with certain aspects of the Citizenship Instructions (such as “significant hardship or disadvantage” and “full circumstances” that are “so unusual” as to warrant approval);

    The presence of a great deal of apparently cogent, credible and un-contradicted material that could have been considered in a variety of ways by the Tribunal but was not because the Tribunal simply stuck to the method set out in the Citizenship Instructions;

    The failure of the Tribunal to confront the effect of the Refugee Review Tribunal decision; and

    The erroneous interpretation the Tribunal gave to the principle in Drake (No 2) and the use to which it put that authority.

Resolution of ground 4: finding not open

273    By this ground, the applicant challenges the Tribunal’s factual conclusion (at [45]-[46] of its reasons) that G had not demonstrated his circumstances were so out of the ordinary or unusual as to cause the Tribunal, adopting the structure of the Citizenship Instructions, to re-think or re-consider the conclusion it was otherwise inclined to reach, that G’s application for approval should be refused. This ground is premised on that aspect of the Citizenship Instructions constituting a lawful policy, and in considering this ground I have also adopted that premise, although I have expressed doubts about the validity of the Citizenship Instructions in this respect.

274    The applicant contends the Tribunal’s finding in [46] that “there is no persuasive evidence that [G] would be in any danger if he is required to return to Albania with his parents” is incompatible with the Refugee Review Tribunal’s reasons, which included extensive discussion of, and findings in relation to, the real chance of significant harm that the Refugee Review Tribunal found G would in fact face if he was taken to Albania. He submits, in effect, that in the absence of the Tribunal engaging in detail with the Refugee Review Tribunal’s analysis and fact-finding, and considering updated or different material to that considered by the Refugee Review Tribunal (assuming this course was open to the Tribunal, which the applicant appeared to suggest it was not), it was not open to the Tribunal to reach the conclusion it did about the risk of harm to G in Albania.