FEDERAL COURT OF AUSTRALIA

VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the Administrative Appeals Tribunal dated 18 October 2018 be set aside.

2.    The matter be remitted to the Administrative Appeals Tribunal to be heard and decided according to law.

3.    The respondent pay the applicant's costs to be assessed if not agreed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

Introduction

1    The applicant is a citizen of Sri Lanka. He arrived in Australia in 2007 and holds a refugee (subclass 200) visa.

2    In December 2013 the applicant applied for citizenship, but the Australian Security Intelligence Organisation (ASIO) asked that his application be referred to it for a security assessment.

3    The applicant met with ASIO on two occasions in 2014. The first meeting was an interview initiated by ASIO. The second meeting was instigated by the applicant, as he wished to disclose information he had not disclosed at the first meeting.

4    In June 2014 the applicant attended a citizenship interview and sat the relevant citizenship test. It seems that no progress with his citizenship application was reported to him until late 2017 and January 2018, when he was provided with a copy of an ASIO qualified security assessment.

5    On 18 October 2018 the delegate of the respondent (Minister) made a decision to refuse the applicant's citizenship application on the basis that the delegate was not satisfied that the applicant met the test of good character under s 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

6    By s 52 of the Citizenship Act, an application for review of such a decision may be made to the Administrative Appeals Tribunal.

7    The applicant applied to the Tribunal for review. He was represented by his present solicitors, attended a hearing and gave evidence.

8    On 31 May 2019 the Tribunal affirmed the decision of the delegate.

9    The applicant appeals to this Court under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Section 44(1) provides that a party to a proceeding before the Tribunal may appeal to this Court, in relation to a question of law, from any decision of the Tribunal in that proceeding. The limitation of the Court's jurisdiction to the resolution of questions of law imposes a significant constraint on the role of the Court in reviewing decisions of the Tribunal: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 286.

10    There are two ground of appeal. The first ground raises the question of the proper time at which the character of the applicant was to be assessed by the Tribunal and whether in referring to certain dates the Tribunal asked itself the wrong question. The second ground alleges that the Tribunal made an error of law by making a finding about the applicant's conduct that was not supported by evidence. The Minister does not contest that the appeal grounds as expressed raise questions of law.

The statutory context

11    Section 20 of the Citizenship Act provides:

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.

12    Section 24 of the Citizenship Act relevantly provides:

Minister's decision

(1)    If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

Note:    The Minister may cancel an approval: see section 25.

(1A)    The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).

13    Section 21 of the Citizenship Act relevantly provides:

Application and eligibility for citizenship

(1)    A person may make an application to the Minister to become an Australian citizen.

Note 1:    Subsections (2) to (8) deal with eligibility.

…

General eligibility

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

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

(b)    is a permanent resident:

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

(ii)    at the time of the Minister's decision on the application; and

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

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

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

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

(g)    is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

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

(2A)    Paragraphs (2)(d), (e) and (f) are taken to be satisfied if and only if the Minister is satisfied that the following apply:

(a)    the person has sat a test approved in a determination under section 23A;

(b)    the person was eligible to sit that test (worked out in accordance with that determination);

(c)    the person started that test within the period worked out in accordance with that determination and completed that test within the period (the relevant test period) worked out in accordance with that determination;

(d)    the person successfully completed that test (worked out in accordance with that determination) within the relevant test period.

(emphasis added)

14    Section 53 of the Citizenship Act provides that the Minister may delegate to any person all or any of the Minister's functions or powers in the Act or regulations.

15    Section 52 of the Citizenship Act provides that an application may be made to the Tribunal for review of, relevantly, a decision under s 24 to refuse to approve a person becoming an Australian citizen.

16    Section 43 of the AAT Act applies to the Tribunal's decision on review. Relevantly, it provides:

43    Tribunal's decision on review

(1A)    This section has effect subject to section 43AAA and to subsection 65(3) of the Australian Security Intelligence Organisation Act 1979.

Tribunal's decision on review

(1)    For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a)    affirming the decision under review;

(b)    varying the decision under review; or

(c)    setting aside the decision under review and:

(i)    making a decision in substitution for the decision so set aside; or

(ii)    remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

Tribunal must give reasons for its decision

(2)    Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision.

…

Tribunal's decision taken to be decision of decision‑maker

(6)    A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.

Two streams in the Tribunal

17    Ground 1 raises a question of the timing of the assessment of good character. It is convenient to consider that question prior to addressing the Tribunal's reasons. The Tribunal's reasons may then be read having regard to the answer to the question of timing.

18    Different members of the Tribunal have taken different approaches to the words in s 21(2)(h) 'at the time of the Minister's decision on the application'. Some have construed those words to introduce a temporal limitation such that on review the Tribunal is restricted to considering the evidence as to whether the applicant satisfied the good character test as at the date of the Minister's (or delegate's) decision. Examples include Sadiq and Minister for Immigration and Border Protection [2016] AATA 463 at [11]; Long and Minister for Immigration and Border Protection [2016] AATA 530 at [12]; and Mkhwananzi and Minister for Immigration and Border Protection [2019] AATA 67 at [29].

19    Generally speaking, however, the Tribunal has construed the provision so that it assesses the issue of character at the time the Tribunal makes its decision: Zheng and Minister for Immigration and Citizenship [2011] AATA 304, where the question was addressed in some detail at [16]-[25]; Kurban and Minister for Immigration and Border Protection [2015] AATA 168 at [9]-[10]; Zhang and Minister for Immigration and Border Protection [2015] AATA 176 at [6]; and Dandan and Minister for Immigration and Citizenship [2010] AATA 539 at [3]-[10].

Consideration of timing question

20    This Court has proceeded on the basis that the relevant time at which character is assessed is the time of the Tribunal's decision: for a recent example, see BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [3] (O'Bryan J).

21    The Minister and the applicant in this matter concur that the Tribunal is to consider whether it is satisfied as to the good character of the applicant at the time of its decision, and I agree with that position.

22    Such an approach is consistent with the reasons of the High Court in Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286.

23    In Shi, the High Court addressed the role of the Tribunal in the context of a provision that required assessment of whether a migration agent was a 'fit and proper person'. The statutory provision did not define or describe the time at which the decision-maker was to make such an assessment.

24    Justices Hayne and Heydon described the Tribunal's task as follows:

[96]    In reviewing MARA's decision to cancel the appellant's registration, the Tribunal was empowered (by s 43(1) of the AAT Act) to exercise all the powers and discretions conferred by the Migration Act on MARA. The questions for the Tribunal in reviewing the cancellation decision were first, whether the Tribunal was satisfied that either of the s 303(1) grounds said to be engaged in this case was made out, and secondly, whether the Tribunal should exercise the powers given by s 303(1) to cancel or suspend the appellant's registration or to caution him. That is, the first questions for the Tribunal were whether it was satisfied that the appellant 'is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance' and whether it was satisfied that the appellant had not complied with the Code of Conduct.

[97]    MARA's contention, in this Court and in the courts below, that the question for the Tribunal was whether the correct or preferable decision when MARA made its decision was to cancel the appellant's registration, should be rejected. It finds no footing in the relevant provisions. To frame the relevant question in the manner urged by MARA would treat the Tribunal's task as confined to the correction of demonstrated error in administrative decision-making in a manner analogous to a form of strict appeal in judicial proceedings. But that is not the Tribunal's task.

[98]    It has long been established that:

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. (Emphasis added)

And MARA accepted in argument in this Court that in conducting its review the Tribunal was not limited to the record that was before MARA. It submitted, however, that the Tribunal had to consider the circumstances 'as appear from the record before it as they existed at the time of the decision under review'.

[99]    Once it is accepted that the Tribunal is not confined to the record before the primary decision-maker, it follows that, unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the initial decision, the material before the Tribunal will include information about conduct and events that occurred after the decision under review. If there is any such statutory limitation, it would be found in the legislation which empowered the primary decision-maker to act; there is nothing in the AAT Act which would provide such a limitation.

[100]    The AAT Act provides for the review of decisions by a body, the Tribunal, that is given all of the powers and discretions that are conferred on the original decision-maker. As Brennan J rightly pointed out in an early decision of the Tribunal, not all of the powers that the Tribunal may exercise draw upon the grant of powers and discretions to the primary decision-maker:

A decision by the Tribunal pursuant to s 43(1)(a) to affirm the original decision leaves the original decision intact, and that is the only decision which takes effect under the enactment: the original powers are not drawn upon by the Tribunal's order. Equally, a decision to set aside the decision under review and remit the matter for reconsideration pursuant to s 43(1)(c)(ii) requires the original repository of the powers and discretions to exercise them afresh: they are not exercised by the Tribunal. Section 43(1) grants the original powers and discretions to the Tribunal, but it does not require the Tribunal to exercise them unless the Tribunal is making a fresh order the effectiveness of which depends upon their exercise.

But subject to that qualification, the Tribunal's task is 'to do over again' what the original decision-maker did.

[101]    Nothing in the provisions of the Migration Act fixed a particular time as the point at which a migration agent's fitness to provide immigration assistance was to be assessed. Unlike some legislation providing for pension entitlements, in which the critical statutory question is whether a criterion was met or not met at a particular date, such as the date of cancellation of entitlements, the provisions of s 303 of the Migration Act contained no temporal element. It follows that when the Tribunal reviews a decision made under s 303, the question which the Tribunal must consider (is the Tribunal satisfied that the person concerned is not a fit and proper person to give immigration assistance?) is a question which invites attention to the state of affairs as they exist at the time the Tribunal makes its decision. MARA's argument to the contrary should have been rejected in the courts below.

(footnotes omitted)

25    Kirby J observed as follows:

[44]    Sometimes, it may be inherent in the nature of a particular decision that review of that decision is confined to identified past events. If, for example, under federal legislation, a pension is payable at fortnightly rests, by reference to particular qualifications that may themselves alter over time, a 'review' of an administrative 'decision' to grant or refuse such a pension, by reference to statutory qualifications, may necessarily be limited to the facts at the particular time of the decision.

[45]    That issue was raised in Jebb v Repatriation Commission, another decision of Davies J, but this time in the Federal Court of Australia, deciding an 'appeal' from a decision of the Tribunal on a suggested error of law. In that case, Davies J found that the Tribunal had fallen into error in considering the applicant's entitlement to certain benefits exclusively by reference to the state of the evidence at a particular time in the past. In the relevant statutory context, there was no warrant for doing so. His Honour said:

[T]he general approach of the [T]ribunal has been to regard the administrative decision making process as a continuum and to look upon the [T]ribunal's function as a part of that continuum so that, within the limits of a reconsideration of the decision under review, the [T]ribunal considers the applicant's entitlement from the date of application, or other proper commencing date, to the date of the [T]ribunal's decision. That function was enunciated in Re Tiknaz and Director-General of Social Services. The approach there taken has since been generally adopted. In the repatriation jurisdiction, it was applied after Banovich in Re Easton and Repatriation Commission where … the [T]ribunal … said:

The ambit of a review by the [Tribunal] is necessarily influenced by the ambit of the steps and proceedings that have taken place prior to its review, for the function of the [Tribunal] is to review a decision. But provided that the matter is within the ambit of its jurisdiction as a review authority, the general practice of the [T]ribunal is to take account of events that have occurred up to the date of the decision. Indeed, s 43(1) of the [AAT Act so implies].

[46]    There is thus a general approach deriving in particular from the statutory function of substituting one administrative decision for another. Nevertheless, the particular nature of the 'decision' in question may sometimes, exceptionally, confine the Tribunal's attention to the state of the evidence as at a particular time.

(footnotes omitted)

26    A more recent exposition is found in the High Court's decision in Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 (Kiefel CJ, Keane and Nettle JJ):

[14]    The enactment of the AAT Act established a new and substantially unprecedented regime of administrative merits review, distinguished principally by the AAT's jurisdiction to re-exercise the functions of original administrative decision-makers. The question for determination by the AAT on the review of an administrative decision under s 25 of the AAT Act is thus whether the decision is the correct or preferable decision. That question is required to be determined on the material before the AAT, not on the material as it was when before the original decision-maker. As Bowen CJ and Deane J held in Drake v Minister for Immigration and Ethnic Affairs, however, and has since been affirmed by this Court in Shi v Migration Agents Registration Authority, the AAT is not at large. It is subject to the same general constraints as the original decision-maker and should ordinarily approach its task as though it were performing the relevant function of the original decision-maker in accordance with the law as it applied to the decision-maker at the time of the original decision.

[15]    Depending on the nature of the decision the subject of review, the AAT may sometimes take into account evidence that was not before the original decision-maker, including evidence of events subsequent to the original decision. But subject to any clearly expressed contrary statutory indication, the AAT may do so only if and to the extent that the evidence is relevant to the question which the original decision-maker was bound to decide; really, as if the original decision-maker were deciding the matter at the time that it is before the AAT. The AAT cannot take into account matters which were not before the original decision-maker where to do so would change the nature of the decision or, put another way, the question before the original decision-maker. As Kiefel J observed in Shi, identifying the question raised by the statute for consideration will usually determine the facts that may be taken into account in connection with the decision. The issue is one of relevance, to be determined by reference to the elements of the question necessary to be addressed in reaching a decision.

(footnotes omitted)

27    Accordingly, it is important to have regard to the words of s 21(2)(h) of the Citizenship Act, the nature of the decision under review (or the question before the original decision-maker) and the role of the Tribunal. It is also to be recalled that, as Kirby J said in Shi, the particular nature of the decision in question may sometimes, but exceptionally, confine the Tribunal's attention to the state of the evidence as at a particular time.

28    In my view, there is no reason to construe the phrase 'at the time of the Minister's decision on the application' in s 21(2)(h) as imposing a temporal limitation on the task of the Tribunal.

29    The words of s 21(2) as a whole do not direct a different result. Once it is accepted that, in performing its task, the Tribunal must stand in the shoes of the Minister and make the correct or preferable decision, the reference to 'Minister' both in the introductory words in s 21(2) and in s 21(2)(h) can be read sensibly and consistently as references to the Tribunal. The use of the present tense 'is' in s 21(2)(h) is also consistent with an assessment by the Tribunal at the time of performance of its task: it is for the Tribunal to assess whether it is satisfied that the applicant is of good character.

30    The inclusion of the phrase 'at the time of the Minister's decision' may be explained on the basis that it distinguishes the timing of the good character assessment under s 21(2)(h) from other requirements in s 21 that either apply at the time that the person makes their application for citizenship or are otherwise able to be met at a particular date: such as a threshold minimum age of 18 years (s 21(2)(a)); and a basic knowledge of the English language taken to be satisfied where, among other things, the applicant has sat an approved test (s 21(2)(e) read with s 21(2A)(a)).

31    Consideration of the nature of the question to be asked by the Tribunal for the purpose of s 21(2)(h) also supports the conclusion that the Tribunal considers the question of satisfaction as to good character and the evidence before it at the time of its decision. Character is a statutory criterion that is not by its nature necessarily time-sensitive and there is no apparent reason that its assessment by the Tribunal would be confined to past events. Indeed, there are sound reasons why up-to-date information should be considered for the purpose of character assessment. Recent conduct, whether positive or negative in nature, might be highly relevant to that assessment. To construe the provision otherwise might result in (for example) a serious criminal conviction post the date of the decision-maker's decision being ignored, or, conversely, might result in rehabilitation or reformation being ignored. I can see no basis for any qualification limiting the use of subsequent events or ignoring the passage of time when they may shed light on character at the time the Tribunal conducts its review.

32    I also note that the term 'good character' is not defined in the Citizenship Act, which indicates that Parliament intended the term to be used in a broad way and allows the decision-maker to consider a range of events and conduct connected with the applicant: Grass v Minister for Immigration and Border Protection [2015] FCAFC 44; (2015) 231 FCR 128 at [60] (Perram, Yates and Mortimer JJ); and BOY19 at [46]-[53]. A construction of s 21(2)(h) that does not limit the use of subsequent relevant information is consistent with that intention.

33    The other reference to the 'time of the Minister's decision' in s 21(2) can be construed in the same manner. Section 21(2)(b) requires that the Minister be satisfied that the applicant is a permanent resident both at the time of the application and 'at the time of the Minister's decision on the application'. It would make no sense that the Tribunal, on review of a citizenship application decision, ignores evidence of events subsequent to the Minister's decision that might disclose that the applicant is no longer a permanent resident of Australia. Clearly, the Tribunal standing in the shoes of the Minister and making the correct or preferable decision is to have regard to all relevant new material before it, and not only that which relates to residency at the time of the Minister's decision. It is to be expected that the approach on review would be consistent where the phrase appears twice in the same provision.

34    Therefore, whilst acknowledging that s 21(2)(h) contains words that were not present in the legislation considered in Shi, I do not consider there is any statutory basis for finding that the Tribunal is confined in its task to considering the position that pertained at the time of the initial decision.

35    This approach to s 21(2) is also consistent with the approach taken more generally in matters relating to migration (although it must be acknowledged that the particular terms of the statutory provisions of the migration legislation differ). Examples include decisions regarding certain subclasses of visas. In that context the court has held that the time that criteria are to be determined by the delegate or Tribunal when they exercise the powers of the Minister is the time of decision. Examples include SFLB v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1610 at [15] (where the relevant clause stated that the primary criteria are to be satisfied at the time of decision, and one of the criterion required the Tribunal to consider whether the appellants met the definition of 'refugee' at the time of its decision); and Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; (2003) 215 CLR 518 at [77] (the Tribunal in reviewing a decision to refuse a protection visa must decide whether the applicant is, at the time of the Tribunal's decision, owed protection obligations).

36    These decisions were referred to by Thawley J in his Honour's recent consideration of the time of decision issue in Yu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 209 (see at [53]-[74]). The matter involved a decision of the Tribunal to affirm a decision of the Minister not to grant the appellants a Business Skills (Residence) (Subclass 890) Business Owner (class DF) visa. The first appellant held an 'ownership interest' in a 'main business' for at least two years before she applied for the visa. However, by the time the appellants' application for review was heard by the Tribunal, the first appellant no longer held that 'ownership interest'. The principal question before the Tribunal was whether the first appellant was still required to hold the 'ownership interest' at the time of the Tribunal's decision or whether it was enough that she had held the relevant interest at the time of the delegate's decision. After a close consideration of the relevant provisions (in particular, cl 890.22 and cl 890.221 of the Migration Regulations 1994 (Cth)) in their statutory context, his Honour decided that the Tribunal had to be satisfied that the first appellant retained the ownership interest at the time of its decision.

37    An example outside the migration sphere is the decision of Katzmann J in Commonwealth of Australia v Horsfall [2010] FCA 443; (2010) 185 FCR 66 where her Honour considered the construction of a clause that required that any proposed new pharmacy in a rural area be at least 10 km from the nearest approved pharmacy. Her Honour considered the time at which that requirement was to be assessed. The applicant argued that it was to be inferred that the requirement was to be considered as at the time of the application. However, Katzmann J found there was no temporal requirement in the relevant rule and the general rule in Shi should be applied: at [71]-[72], [77].

38    It is important to acknowledge that there are cases where a legislative intention to decide on criteria at a particular time is apparent. The High Court in Shi referred to and distinguished the decision of Davies J in Freeman v Secretary, Department of Social Security (1988) 19 FCR 342, an example where pension legislation required the Tribunal to address whether cancellation of a pension was valid at the time of the cancellation. Justice Davies acknowledged that, in contrast to the pension provision with which he was concerned, there may be cases where the function of the Tribunal formed part of 'an administrative continuum' where it may be appropriate for the Tribunal to consider the entitlement to a pension at the date of the Tribunal's decision: at 345.

39    Other examples may be found in the context of social security legislation where the dates at which claims are to be determined are defined: for example, Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123.

40    In Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295; (2012) 36 VR 656, the relevant provision empowered the Pharmacy Board of Australia to take 'immediate action' in relation to the registration of a registered health practitioner if the Board believed there was a risk to persons because of the practitioner's health or conduct. It was held that a decision to take 'immediate action' was to be reviewed as at the point in time that the decision was made, the words 'immediate action' suggesting such temporal limitation.

41    In my view, such exceptional cases, to use Kirby J's expression in Shi, are distinguishable having regard to the wording of the relevant provisions and their purpose. They do not persuade me that the words of s 21(2)(h) viewed in their statutory context suggest any such limitation.

42    Accordingly, the Tribunal is to consider whether it is satisfied as to the good character of the applicant as at the time of its decision and having regard to relevant evidence available to it at that time.

The Tribunal's reasons

43    It is now appropriate to turn to the Tribunal's reason and the manner in which it dealt with the time of decision. The Tribunal in its reasons identifies the date at which it says it is to assess the applicant's character on some five occasions, each reference being incorrect. On three occasions it identifies the date of the delegate's decision. On two occasions it identifies the date of the citizenship application. It does not expressly refer to the date of its decision-making.

44    The Tribunal commenced by describing the nature of the application:

1.    This is an application for the review of a decision of a delegate of the Respondent (the Delegate). This decision, made on 18 October 2018 (T2 8-17, R1), refused the Applicant's application for Australian citizenship by conferral under s 24(1) of the Australian Citizenship Act 2007 (Cth) …The application was refused on the basis that the Applicant did not satisfy the character requirements under s 21(2)(h) of the Citizenship Act at the time of the Minister's decision.

45    The reference in that context to 'the time of the Minister's decision' was correct because the Tribunal was describing the delegate's task.

46    The Tribunal then set out the delegate's decision, effectively in full, and then set out the relevant legislation, including s 21(2)(h). The Tribunal also referred to the 'Australian Citizenship Policy', which the parties accepted provides guidance on how to apply the 'good character' requirement in s 21. For example, it was said that chapter 11 cites the case of Irving v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, in which Lee J noted at 431-432:

[u]nless the terms of the Act and regulations require some other meaning be applied, the words 'good character' should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion … A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character … Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.

47    The Tribunal quoted from part of chapter 11 of the Policy, which stated that 'enduring moral qualities' encompasses the following concepts:

•    characteristics which have been demonstrated over a very long period of time

•    distinguishing right from wrong

•    behaving in an ethical manner, conforming to the rules and values of the Australian society

48    It noted that the Policy further states that:

[A] decision maker needs to look holistically at an applicant's behaviour over a lasting or enduring period of time. The amount of time considered to be 'lasting' or 'enduring' depends on the merits of each case, but in most cases will go back prior to any visa application.

49    The Tribunal then moved to the nature of the application before it, stating:

25.    The issue for determination by this Tribunal is whether the Applicant was, as at 18 October 2018, a person of good character for the purpose of satisfying s 21(2)(h) of the Citizenship Act.

50    The reference to 18 October 2018 is the first incorrect reference. It is a reference to the date of the delegate's decision.

51    The Tribunal then listed the evidence before it (which included statutory declarations dated February 2019) and said that it had reviewed all of the evidence before it.

52    The Tribunal copied into the reasons the written submissions of the parties and summarised the oral evidence given by the applicant and his witness.

53    The error as to the applicable date was repeated at para 35 of the reasons and in the heading that immediately follows. In both instances, the Tribunal referred to the 'time that the delegate made [the] decision':

35.    In determining whether the Applicant was of good character at the time that the Delegate made his decision, the Tribunal must take into account a number of considerations. These are outlined below.

Was the Applicant of good character at the time the Delegate made the decision?

36.    …

54    The Tribunal then addressed matters relevant to the character assessment. It noted the applicant had a conviction for an alcohol related driving offence, which it categorised as minor. It summarised his character references. It addressed the more serious matter of an allegation that the applicant was involved in people smuggling.

55    As noted above at [3], the applicant attended two meetings with ASIO. The first was arranged by ASIO. It is not in issue that the applicant was dishonest at that meeting. When asked about whether he knew anyone who was involved with the vessel that had sunk, he denied any knowledge of who may have been on board and denied any involvement with the boat. After the meeting, the applicant reflected on his conduct and requested a further meeting with ASIO. At the second meeting he told ASIO that his father was on the vessel and identified the name of the person said to have been the people smuggler. The Tribunal summarised the applicant's evidence in this regard.

56    The Tribunal then quoted (at para 43 of its reasons) from the content of ASIO's qualified security assessment, provided some four years later (the reference to 'SAI' being a reference to a security assessment interview):

10.    ASIO assesses Mr [VFWQ] was involved in facilitating the passage of his father and another individual to Australia on board the vessel associated with people-smuggling venture known as SAR [detail omitted] (hereafter SAR [detail omitted]). SAR [detail omitted] departed for Australia from [location omitted] on [date omitted] and shortly after capsized, resulting in the deaths of at least [number of deaths omitted] people onboard. During both SAIs, Mr [VFWQ] denied any involvement in people smuggling.

11.    …ASIO assesses Mr [VFWQ] was dishonest during his SAIs regarding his knowledge of, and involvement in, people smuggling activists and in relation to his people-smuggling associations.

…

17.    ...some information contained within this security assessment may otherwise be relevant to a decision making process which may affect Mr [VFWQ]'s eligibility for Australian citizenship and the entitlements that accompany Australian citizenship, such as the eligibility to apply for an Australian passport.

57    The Tribunal assessed the evidence that was provided by the applicant as follows:

45.    The Tribunal accepts the Applicant has not been prosecuted by ASIO in respect to the allegation, however after having considered both written and oral evidence submitted by the Applicant, it is not persuaded by the narrative submitted by the Applicant, and in fact finds it implausible that he had no knowledge or information concerning the whereabouts and activities of his father, given that in a question put to him in oral evidence he said he came from a close family. The Tribunal accepts the Citizenship Policy discusses good character in the following terms:

Good character refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship.

58    The Tribunal made the following findings (edited only to correct spelling errors):

48.    The Tribunal is unable to determine the character of the Applicant prior to his entrance into Australia. It does however have evidence that ASIO has determined that the Applicant has been dishonest in his dealings with Australia's primary intelligence agency and has grave suspicions that he has been involved in the facilitation of people smuggling and associated with people in that trade.

…

54.    In the context of ASIO's assessment, the Tribunal finds the Applicant was dishonest in his dealings with officials of that organisation. The Tribunal accepts that since that time the Applicant may well have gone through a process of rehabilitation whilst in Australia, however in the Tribunal's view, sufficient time has not passed in order to determine that he is a person of good character for the purpose of the Citizenship Act.

55.    The Tribunal finds, having reviewed the evidence before it, that the Applicant's activity in terms of the facilitation of people smuggling was calculated, and is not the behaviour of a person of good character. It finds his explanation of lack of knowledge in respect to his father and another person to be implausible.

59    The Tribunal then inserted the following heading:

Was the applicant of good character at the time of his application?

60    This heading is the fourth incorrect date of assessment (noting the date of the applicant's citizenship application was 19 December 2013).

61    The Tribunal said that it took into account character references provided on behalf of the applicant but said that those references did not outweigh the matters in the qualified security assessment.

62    The Tribunal then included a section headed 'Conclusion', stating:

64.    The Tribunal is of the view that more time needs to pass before a proper assessment can be made in determining whether the Applicant may be considered to have satisfied the character requirements of the Citizenship Act. Additional time will allow for a greater capacity to assess the Applicant's character in terms of his commitment and values to Australia.

65.    Having considered all the evidence before it, the Tribunal is not satisfied that at the time of submitting his application for citizenship the Applicant was of good character for the purposes of s 21(2)(h) of the Citizenship Act.

63    The fifth incorrect reference (in para 65) to the date of assessment ('at the time of submitting his application for citizenship') therefore comprises part of the Tribunal's conclusion.

Ground 1

64    By ground 1 the applicant contends that the Tribunal's decision was affected by jurisdictional error because it failed to carry out its statutory task of making a finding as to whether the applicant was of good character at the time of its decision, instead making a finding at the incorrect date of the date of the citizenship application.

Analysis

65    A decision based on the decision-maker's satisfaction as to some matter or thing is reviewable by the Courts if the decision-maker does not address the statutory question, or the conclusion is affected by some error of law, or if the decision-maker takes some extraneous reason into consideration or excludes from consideration a relevant matter: Avon Downs Pty Ltd v Commissioner of Taxation (Cth) (1949) 78 CLR 353 at 360; and Buck v Bavone (1976) 135 CLR 110 at 118-119.

66    The applicant submits that the Tribunal was 'utterly confused' as to the relevant date for assessment of its satisfaction. The submission finds support in the Tribunal's reasons. There is no consideration of Shi or any attempt to justify why the date of the delegate's decision or the date of the application were relevant. It might be assumed that the Tribunal read s 21(2)(h) and assumed that it was to review the question of good character 'as at the time of the [delegate's] decision on the application'. But that does not explain the two references to an assessment at the date of the citizenship application. Any further attempt to explain the errors is speculative and unconstructive.

67    The applicant contends that the Tribunal has not carried out its statutory task: it has not considered whether it is satisfied that the applicant is of good character at the right date but only at a wrong (and so irrelevant) date. It submits that such an error is jurisdictional as explained in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [31].

68    The relevant principles as to such an error were recently collected in Tsvetnenko v United States of America [2019] FCAFC 74 at [33]-[44] (Besanko, Banks-Smith and Colvin JJ). In particular, in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123, Kiefel CJ, Gageler and Keane JJ described jurisdictional error in a statutory decision‐making process as 'a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision‐maker purported to make it': at [24]. This approach directs attention to the terms of the particular statute conferring the decision‐making power. That is, '[t]he question of whether an error is jurisdictional is, and always will be, context‐specific': SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; (2016) 238 FCR 456 at [21] (Allsop CJ).

69    For the reasons already given, a review by the Tribunal of a decision based on assessment of character under s 21(2) of the Citizenship Act requires the Tribunal to be satisfied that at the time of its review the person is of good character. It is not empowered to assess its satisfaction at some other time and make a decision as to whether a person is eligible to become an Australian citizen on a different basis.

70    Whilst the Minister accepts that the Tribunal's reasons are littered with references to the incorrect dates (including in its conclusion), he contends that no jurisdictional error is disclosed for two reasons.

71    First, the Minister contends that despite the infelicitous language, the Tribunal did in fact form the view that it could not be satisfied that the applicant was a person of good character at the time of its decision. The Minister relies on paras 54, 55 and 64 of the reasons (included above) and the fact that the Tribunal referred to statutory declarations that were made in February 2019.

72    In order to be persuaded by that argument, it would need to be reasonably apparent that the Tribunal was in substance assessing its satisfaction at the date of review and not at an alternative incorrect date. I would accept that despite the nature of its conclusion at para 65, the Tribunal has had regard to evidence of events that occurred after the date of the citizenship application. However, it seems to me that the matters expressed in para 54 and para 64 can sensibly be read as being consistent with the Tribunal assessing its satisfaction as at the date of the delegate's decision. The evidence in the statutory declarations is not said to be date specific. That is, it is not directed at the date of the review. The reference to insufficient time having passed in both para 54 and para 64 can sensibly apply to a consideration of satisfaction as at the date of the delegate's decision or the Tribunal's decision. As the Tribunal noted on three occasions in its reasons that the date of the delegate's decision was relevant but did not anywhere refer to the relevance of the date of its review, I am not persuaded that the ambiguous nature of what is said at para 54 and para 64 supports the Minister's contention. I am not satisfied that the Tribunal in fact considered the position on the basis that the review date was the correct date. Therefore, I consider that error is disclosed.

73    This leads to the Minister's second contention as to why there is no jurisdictional error. The Minister contends that even if the Tribunal erred in failing to make a finding at the correct date, any such failure or omission was not material, relying on the High Court's decision in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421.

74    In SZMTA, the majority (Bell, Gageler and Keane JJ) held that a breach of a statutory provision which conditions the performance of the Tribunal's duty to conduct a review only operates to deny legal force to the decision of the Tribunal if that breach is material: at [44]. A breach is only material if compliance could realistically have resulted in a different decision: at [45], [49]. Whether there is such a realistic possibility is a matter to be adjudged on the evidence on the application: at [46].

75    The question of whether compliance with the limits on the Tribunal's functions and powers that were imposed in accordance with the discussion in Shi and under the AAT Act could realistically have resulted in a different decision is a question of fact on which the Minister (in this case) bears the onus of proof: SZMTA at [46]. The question is to be determined by inferences drawn from evidence adduced on the application: at [46]. The court must take care, however, not to intrude into the fact-finding function of the Tribunal: at [48].

76    The date of the delegate's decision (October 2018) was some seven months prior to the date of the hearing before the Tribunal and the Tribunal's review decision (May 2019). The Tribunal refers in its reasons to the need for more time to pass before a favourable assessment could follow. Had it assessed the question of good character as at the time of its decision, a further seven months would have passed. It is not for this Court to speculate as to how much more time the Tribunal considered should pass before it might be satisfied as to good character. Another seven months may have made no difference or it may have made some difference. The Tribunal noted the statement in the Policy to the effect that the period of time considered was to be 'lasting' or 'enduring', but in this case, where the application was made in 2013 and the central event of dishonesty at the first meeting with ASIO occurred in 2014, it is by no means clear whether the Tribunal might have formed a different view after another six months, seven months, 12 months, 24 months or more, if at all. The statutory task requires an evaluative judgement to be made and an opinion to be formed by the Tribunal. This Court cannot properly say that the Tribunal would not have been satisfied as to good character even after the passage of further time between the date of the delegate's decision and the Tribunal decision. There is a realistic possibility that the additional time may have made a difference and that the Tribunal may have reached a decision favourable to the applicant.

77    It follows that the error deprived the applicant of the realistic possibility of a successful outcome. The Tribunal's error was a material error. Ground 1 is made out.

Ground 2

78    In light of my determination with respect to ground 1, it is not strictly necessary to consider ground 2. However, it can be dealt with briefly.

79    By ground 2 the applicant contends that the Tribunal's finding at para 55 that 'the [applicant's] activity in terms of the facilitation of people smuggling was calculated' was not supported by the evidence before it.

80    The Tribunal had regard to the ASIO assessment that included the statement that 'ASIO assesses [the applicant] was involved in facilitating the passage of his father and another individual to Australia on board the vessel associated with people-smuggling'. It placed 'significant weight' on the assessment, having regard to the nature of the statutory body that prepared the assessment.

81    The applicant's evidence was that he found out after the boat sank that his father was on board and that he was later told by his mother the name of the people smuggler. He otherwise denied knowledge of or involvement in the circumstances of the boat trip or people smuggling. However, as he withheld that information at the first ASIO interview, ASIO assessed that he was dishonest regarding 'his knowledge of, and involvement in, people-smuggling activities and in relation to his people-smuggling associations'. The Tribunal assessed the applicant's evidence as implausible.

82    The Tribunal gave reasons for preferring the evidence of ASIO over that of the applicant and its decision to do so was reasonably open to it, having regard to ASIO's assessment that the applicant had been dishonest. It is not to the point that other logical or reasonable minds might have reached a different conclusion: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131], [135] (Crennan and Bell JJ).

83    The applicant's real complaint is the use of the word 'calculated'. He refers to the Oxford Dictionary of English (third edition) definition of 'calculating' to mean 'acting in a scheming and ruthlessly determined way' and the Macmillan Dictionary (online) definition of 'calculating' to mean 'using careful and clever planning to get what you want, even if it hurts other people'. The applicant submits that the Tribunal has elevated his level of dishonesty by assuming that his conduct was of such a nature when there was no evidence to suggest his involvement in people smuggling was 'calculated'.

84    Taking into account that ASIO had assessed that the applicant 'was involved in facilitating the passage of his father and another' and that there was 'knowledge and involvement' on his part, there was a foundation for an assessment by the Tribunal that there was deliberate and knowing conduct on the part of the applicant. Once there is a logical and reasoned basis for that assessment, then there may be a legitimate array of terms that might be used to describe the conduct, one of those being 'calculated', a word which might legitimately be used to describe a spectrum of conduct. In those circumstances, dictionary definitions of terms, although useful, should be used with caution. For example, further to the definitions cited by the applicant, 'calculate' is defined by the Macquarie Dictionary online in a range of terms, some of which are emotive (such as to do cold bloodedly) and some less so (including to do deliberately, to intend and to plan). The Oxford English Dictionary online defines 'calculated' as 'reckoned, estimated, devised with forethought'.

85    Having regard to the range of definitions and in circumstances where there was an ASIO assessment that there had been a level of knowledge of and facilitation of people smuggling on the part of the applicant, to assume the word was used in only the highly malevolent sense of the definitions identified by the applicant reflects an artificial parsing of the Tribunal's reasons. There was an evidentiary foundation for use of a term that invoked an element of knowledge and participation, and 'calculated' can be construed in that way, and such use does not disclose error. To necessarily assume more is to artificially scrutinise the Tribunal's reasons 'with an eye keenly attuned to error': Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46].

86    It follows that I would not uphold ground 2.

Conclusion

87    The Tribunal's decision should be set aside and the matter remitted to the Tribunal to be decided according to law.

88    Costs should follow the event in the usual manner.

Associate:

Dated:    28 February 2020