Federal Court. Does the "Citizenship Act require the relevant decision maker to consider and decide on each aspect of s 21(2) once s 21(1) is enlivened, even if a prohibition on approval applies", such as s 24(6)(g)?
The Applicant applied for Australian citizenship by conferral. The delegate's decision revealed that all criteria in s 21(2) of the Australian Citizenship Act 2007 (Cth) for the grant of citizenship was satisfied, except for s 21(2)(h), which was not assessed and provided as follows:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(h) is of good character at the time of the Minister's decision on the application.
Section 24(6)(a) provided as follows:
(6) The Minister must not approve the person becoming an Australian citizen at a time:
(a) when proceedings for an offence against an Australian law (including proceedings by way of appeal or review) are pending in relation to the person ...
The delegate found that a prohibition in s 24(6) applied as a result of the criminal charges then pending against the Applicant. As such, the delegate concluded that the Applicant's citizenship application could not be approved.
On review, the Tribunal found that there was insufficient evidence as to whether s 24(6)(a) continued to prevent the grant of citizenship. However, it found that the grant was prevented by s 24(6)(g), which provided as follows:
(6) The Minister must not approve the person becoming an Australian citizen at a time:
...
(g) if, in respect of proceedings for an offence against an Australian law in relation to the person:
(i) a court does not impose a sentence of imprisonment on the person; and
(ii) the court releases the person because the person gives a security, with or without sureties, by recognizance or otherwise, that the person will comply with conditions relating to the person's behaviour;
during any period during which action can be taken against the person under an Australian law because of a breach of a condition of that security; or ...
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Does the "Citizenship Act require the relevant decision maker to consider and decide on each aspect of s 21(2) once s 21(1) is enlivened, even if a prohibition on approval applies", such as s 24(6)(g)?
Question 2: If a citizenship application because of a failure to satisfy s 21(2)(h), is the provision nevertheless capable of being satisfied when determining a subsequent citizenship application?
Question 3: Would a favourable assessment under s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) bind the Minister in relation to whether the Applicant passes the character test for the purpose of the Migration Act 1958 (Cth)?
Question 4: Is a refusal or failure to make a decision judicially reviewable only if the decision-maker is under a duty to act or decide?
Question 5: Is there a generalised presumption that a statutory power is coupled with an implied duty to consider whether to exercise it?
Question 6: Would any error have been immaterial, as the decision-maker was required to refuse the Applicant's application for citizenship by reason of one of the statutory bars to approval in s 24(6) applying at the time of decision?
The FCA answered those questions as follows: