Whether a Departmental policy is unlawful

The Federal Court (Full Court) decided whether a Departmental policy is unlawful. The policy deals with the situations in which the Minister should exercise his/her discretion to refuse a citizenship applications under s 24 of the Australian Citizenship Act 2007. The policy deals with children under 16 years old 'applying individually in their own right'.

Summary

The respondent (citizenship applicant) argued before a single judge of the Federal Court (FCA) that a particular passage of a Departmental policy was inconsistent with the Australian Citizenship Act 2007. The single judge ruled that such a passage was invalid/unlawful. However, the Minister appealed that decision to the Full Court (FCAFC).

The policy (link to Legendcom provided below) deals with the circumstances in which the Minister has a residual discretion to refuse citizenship applications.

Subsection 21(1) of the Act provides as follows:

21    Application and eligibility for citizenship 

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

The Full Court described s 21 as follows:

11    Section 21 deals with the application for citizenship and eligibility. Section 21(2) sets out the general eligibility criteria for persons aged 18 or over at the time of making the application. The criteria are detailed and include that the person: is a permanent resident at the time of making the application and at the time of the Minister’s decision on the application; satisfies either the general residence requirement (which is dealt with in s 22), the special residence requirement (see s 22A or 22B) or the defence service requirement (see s 23) at the time of making the application; and is of good character at the time of the Minister’s decision on the application. Other parts of s 21 deal with applicants who have a permanent or enduring physical or mental incapacity (s 21(3)), or who are over 60 years of age, or have a hearing, speech or sight impairment (s 21(4)). Other parts of s 21 deal with children of former Australian citizens, people born in Papua and stateless people.

The "residual discretion" is contained in s 24(2) of the Act, which reads as follows:

24    Minister’s decision

(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).  

There is a policy that deals with the circumstances in which the Minister might exercise his/her "residual" discretion to refuse the citizenship application under s 24, which provides as follows (emphasis added) ...

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