Christopher Levingston Blog

A recent decision of the Full Federal Court will be of interest to practitioners

http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2019/2019fcafc0079

Minister for Home Affairs v G [2019] FCAFC 79 by reason of its discussion of the role of the ACI's  (Australian Citizenship Instructions)

The ACI's operate in much the same way as PAM and "inform" the decision making of the Department.

The issue in this case was the following instruction:

 s 5.12.5 of the Citizenship Instructions:

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

It was found that the words " would usually not be approved" did not constitute a rule or policy without regards to the merits of the case and were thus permissible and not ultra vires the Act.

The relevant context was determined by the threshold statement underpinning the ACIs as follows:

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.

That being the case absent any evidence of application of a rule or policy expressed in peremptory terms the ACI's stand.