Full Federal Court Upholds Lawfulness of Executive Policy in Citizenship Conferral

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

[APPELLANT] v G [2019] FCAFC 79 Appeal from: G v Minister for Immigration and Border Protection [2018] FCA 1229

File number: VID 1165 of 2018

Judges: MURPHY, [NAME] JJ

Date of judgment: 21 May 2019

Catchwords: ADMINISTRATIVE LAW – executive policy – [NAME] Act 2007 (Cth) – [NAME] – where [[NAME]udge declared part of the [NAME] (being an executive policy) to be inconsistent with the Act and unlawful – principles applicable to whether an executive policy is inconsistent with a statute and unlawful CITIZENSHIP – citizenship by conferral – [NAME] years – [NAME] – whether a part of the [NAME] (relating to [NAME] years seeking citizenship by conferral) was inconsistent with the [NAME] Act 2007 (Cth) and therefore unlawful

Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) [NAME] Act 2007 (Cth), ss 19G, 20, 21, 22, 22A, 22B, 23, 24, 26 [NAME] (Citizenship Test Review and Other Measures) Act 2009 (Cth) Judiciary Act 1903 (Cth), s 39B Migration Act 1958 (Cth), ss 48A, 48B

Cases cited: [NAME] v Minister for Immigration and Citizenship (2011) 194 FCR 133 [COMPANY] (in liq) v [NAME] Commission (2004) 139 FCR 73 [NAME] v Minister for Immigration and [APPELLANT] (1979) 24 ALR 577 [NAME] v Minister for Immigration and [APPELLANT] (No 2) (1979) 2 ALD 634 [NAME] v Federal Commissioner of Taxation (2002) 123 FCR 499 [NAME] v [COMPANY] (1972) 127 CLR 421 Green v Daniels (1977) 13 ALR 1 [NAME] v [NAME] (2013) 85 NSWLR 86 [NAME] [APPELLANT] v [COMPANY] (1986) 162 CLR 24 Minister for Immigration, [NAME] [APPELLANT] v [NAME] (1994) 50 FCR 189 [COMPANY] v Commissioner of Taxation (2003) 137 FCR 288 [COMPANY] v [COMPANY] (2003) 216 CLR 277 [NAME] v Minister for Immigration and [APPELLANT] (1981) 34 ALR 639 [NAME]/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 [NAME] v Minister for Immigration and Citizenship (2012) 199 FCR 404 Wong v R (2001) 207 CLR 584 Wong v R (2001) 207 CLR 584

Date of hearing: 19 February 2019

Registry: Victoria

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 79

Counsel for the Appellant: [redacted]

Solicitor for the Appellant: [redacted]

Counsel for the First Respondent: [redacted]

Solicitor for the First Respondent: [redacted]

Counsel for [RESPONDENT] Respondent: [redacted]

ORDERS VID 1165 of 2018

BETWEEN: [APPELLANT] Appellant

AND: G First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL [RESPONDENT] Respondent

JUDGES: [RESPONDENT] AND [RESPONDENT] JJ DATE OF ORDER: 21 MAY 2019

THE COURT ORDERS THAT:

1. The name of the appellant be changed to the [APPELLANT]. 2. The appeal be allowed. 3. The declaration in paragraph 4 of the orders of the [NAME] judge dated 5 September 2018 be set aside. 4. The appellant pay the first respondent's costs of the appeal, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction 1 The issue raised by this appeal concerns the validity of an executive policy. Specifically, the issue is whether a part of the [NAME] (the [NAME]), being an executive policy in relation to the [NAME] Act 2007 (Cth), is inconsistent with the Act and therefore unlawful. 2 The respondent (G) is a [APPELLANT] with a disability. He was born in Australia in 2009 and is a citizen of Albania. In January 2013, he was granted a protection visa and became a [NAME] of Australia. On 10 February 2015, [NAME] mother, on his behalf, applied for [NAME] to be granted [NAME] by conferral. On 16 July 2015, a delegate of the Minister for Immigration and Border Protection, as the Minister was then named, refused the application. The delegate accepted that [NAME] was eligible to become an [NAME] [NAME] s 21(5) of the [NAME] Act, but decided to exercise the discretion available [NAME] s 24(2) of the Act to refuse the application, on the basis that [NAME] did not satisfy the policy guidelines set out in the [NAME]. [NAME] applied to the Administrative Appeals Tribunal (the Tribunal) for review of the decision of the delegate. The Tribunal affirmed the decision [NAME] review. 3 [NAME] (through his litigation guardian) commenced a proceeding in this Court seeking judicial review of the Tribunal's decision, pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth). In his amended originating application, [NAME] relied on four grounds of review. These included that the Tribunal had inflexibly applied a policy (namely, the [NAME]). The [NAME] judge upheld each of the grounds of review. On 5 September 2018, [NAME] made orders that: the decision of the Tribunal be set aside; the matter be remitted to the Tribunal for determination according to law; and the Minister pay [NAME] costs. There is no appeal from these orders. 4 Ground 2 of the amended originating application included a contention that a part of the [NAME] was invalid. The [NAME] judge accepted this contention and made a declaration to reflect her conclusion. The declaration, contained in paragraph 4 of the orders made on 5 September 2018, was in the following terms: THE COURT DECLARES THAT:

4. The part of section 5.12.5 of the [NAME] (as re-issued on 1 July 2014) emphasised in bold below is inconsistent with the [NAME] Act 2007 (Cth) and unlawful: [NAME] applying individually in their own right would usually not be approved [NAME] s 24 unless they are [NAME] residents at the time of application and decision and also meet the following policy guidelines: … • are [NAME] when applying, living with a [NAME] [NAME] who is not an [NAME] and consents to the application, and the [APPELLANT] would otherwise suffer significant hardship or disadvantage – see section 5.17 Ministerial discretion – significant hardship or disadvantage (s 22(6)) or … 5 The appellant, now named the [APPELLANT] (the Minister), appeals from part of the judgment of the [NAME] judge, namely the declaration in paragraph 4 of the orders. The Minister contends that the [NAME] judge erred in concluding that part of section 5.12.5 of the [NAME] was inconsistent with the [NAME] Act and unlawful. 6 For the reasons that follow, we accept this contention. The relevant part of the [NAME] was not inconsistent with the Act and was not unlawful.

Accordingly, the appeal is to be allowed and the declaration set aside.

The key legislative provisions 7 The Preamble to the [NAME] Act states: The Parliament recognises that [NAME] represents full and formal membership of the community of the Commonwealth of Australia, and [NAME] is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity. The Parliament recognises that persons conferred [NAME] enjoy these rights and undertake to accept these obligations: (a) by pledging loyalty to Australia and its [NAME]; 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. 8 Division 2 of Pt 2 deals with acquisition of [NAME] by application. Within that Division, [NAME] (comprising ss 19G-28) deals with citizenship by conferral. The "simplified outline" in s 19G describes the range of circumstances in which [NAME] will be eligible for [NAME] by conferral: 19G Simplified outline The following is a simplified outline of this Subdivision: You may be eligible to become an [NAME] [NAME] this Subdivision in 7 situations: • you satisfy the general eligibility criteria and have successfully completed citizenship test: see subsections 21(2) and (2A); or • you have a [NAME] 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 [NAME] 18: see subsection 21(5); or • you were born to a former [NAME]: 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 [NAME]. The Minister must approve or refuse you becoming an [NAME]. You must be eligible to be an [NAME] 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 [NAME].

Relevantly for present purposes, one of the situations in which [NAME] may be eligible to become an [NAME] is if they are aged [NAME] 18; this situation is dealt with specifically in s 21(5), which is set out below. 9 Section 20 sets out the requirements for becoming an [NAME]: 20 Requirements for becoming a citizen [NAME] becomes an [NAME] [NAME] this Subdivision if: (a) the Minister decides [NAME] subsection 24(1) to approve the person becoming an [NAME]; and (b) if the person is required to make a pledge of commitment to become an [NAME] – the person makes that pledge. Note: Sections 21 to 25 deal with the Minister approving the person becoming an [NAME]. Sections 26 and 27 deal with the making of a pledge of commitment. 10 The provisions relating to the making of the pledge of commitment do not apply to [NAME] who is [NAME] years of age at the time of making the application to become an [NAME]: see s 26(1)(a). 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 [NAME] 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 [NAME] 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 [NAME], [NAME] born in Papua and stateless [NAME]. 12 The part of s 21 that is directly relevant for present purposes is s 21(5), which applies to persons aged [NAME]

18. It provides: (5) [NAME] is eligible to become an [NAME] if the Minister is satisfied that the person: (a) is aged [NAME] 18 at the time the person made the application; and (b) is a [NAME]: (i) at the time the person made the application; and (ii) at the time of the Minister's decision on the application. 13 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. While this provision is not directly relevant to [APPELLANT] application for citizenship, the provision is referred to in the part of the [NAME] that relates to [NAME] circumstances. We will therefore outline some aspects of s 22 in order to provide context for the relevant parts of the [NAME]. Section 22(1) provides as follows: Subject to this section, for the purposes of section 21 [NAME] satisfies the general residence requirement if: (a) the person was present in Australia for the period of 4 years immediately before the day the person made the application; and (b) the person was not present in Australia as an unlawful non-citizen at any time during that 4 year period; and (c) the person was present in Australia as a [NAME] for the period of 12 months immediately before the day the person made the application. 14 Section 22(6) is an ameliorative provision in the following terms: For the purposes of paragraph (1)(c), the Minister may treat a period as one in which the person was present in Australia as a [NAME] if: (a) the person was present in Australia during that period (except as a [NAME] or an unlawful non-citizen); and (b) 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 [NAME]. 15 Section 24 confers a general power on the Minister to approve or refuse to approve [NAME] becoming an [NAME]. Its text, relevantly, is as follows: 24 Minister's decision (1) If [NAME] makes an application [NAME] section 21, the Minister must, by writing, approve or refuse to approve the person becoming an [NAME]. Note: The Minister may cancel an approval: see section 25. (1A) The Minister must not approve the person becoming an [NAME] unless the person is eligible to become an [NAME] [NAME] subsection 21(2), (3), (4), (5), (6), (7) or (8). (2) The Minister may refuse to approve the person becoming an [NAME] despite the person being eligible to become an [NAME] [NAME] subsection 21(2), (3), (4), (5), (6) or (7). 16 Section 24 then sets out a number of other, specified circumstances in which the Minister is precluded from granting citizenship. These circumstances include: where the Minister is not satisfied of [NAME]'s identity; where the person has an adverse security assessment; where [NAME] is in prison, or facing proceedings for any offence against [NAME] law; or if [NAME]'s former citizenship status has ceased in the preceding 12 months.

The [NAME] 17 We now describe the relevant parts of the [NAME] (referred to in these reasons as the "[NAME]", but also referred to internally in the [NAME] as the "[NAME]"). The version of the [NAME] applicable in the present case is the version issued on 1 July 2014. The [NAME] comprise 278 pages, divided into 20 chapters. The [NAME] are further divided into numbered parts, referred to as "sections". 18 There is no power conferred by the [NAME] Act to make the [NAME]. Despite appearing in a form that resembles a legislative instrument or that has a statutory source, the [NAME] are made in an exercise of executive power. 19 The introduction to the [NAME] commences with the following paragraph: The role of the [NAME] is to support the [NAME] Act 2007. The [NAME] provide guidance on policy in relation to the interpretation of, and the exercise of powers [NAME], the Act and the Regulations. [NAME] should be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers [NAME] the Act. (Emphasis added.) 20 Chapter 5 of the [NAME] deals with citizenship by conferral. It is divided into 31 sections, numbered from 5.1 to 5.31. Of principal relevance for present purposes is section 5.12, which deals with persons aged [NAME] 18 years. Section 5.12 is itself divided into eight sections, numbered 5.12.1 to 5.12.8. Sections 5.12.1 and 5.12.2 are in the following terms: 5.12.1 When was application received For applications received before 9 November 2009, refer to the Act and [NAME] in effect immediately before 9 November 2009. For applications received on or after 9 November 2009, [NAME] [NAME] the age of 18 years applying for [NAME] by conferral [NAME] s21(5), must be a [NAME] (that is, they must have activated their [NAME] visa) at the time of application and at the time of decision to be eligible for [NAME]. Person aged [NAME] 18 (5) [NAME] is eligible to become an [NAME] if the Minister is satisfied that the person: (a) is aged [NAME] 18 at the time the person made the application; and (b) is a [NAME]: (i) at the time the person made the application; and (ii) at the time of the Minister's decision on the application. The discretion in s24(2) to refuse to approve an applicant becoming an [NAME] despite being eligible [NAME] s21(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 [NAME] considerations that need to be taken into account are the legislative requirements, the best interests of the [APPELLANT] and the policy guidelines set out below. 5.12.2 Best interests of the [APPELLANT] The best interests of the [APPELLANT] are to be considered as one of the [NAME] considerations when assessing the application. This consideration only applies if the [APPELLANT] is or would be less than 18 years of age at the time of decision on the application and the [APPELLANT] is living in Australia. See Chapter 18 – Best interests of the [APPELLANT]. 21 Section 5.12.5 provides: 5.12.5 Applicants [NAME] the age of 16 A [APPELLANT] aged [NAME] 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 [NAME] [NAME]. This is set out in s46(2A). In the case of an applicant who does not meet the policy guidelines below, [NAME] must consider the full circumstances of the case, including the best interests of the [APPELLANT], 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 [NAME].[NAME] policy, if an applicant is [NAME] years of age a [NAME] [NAME] must sign the application form. [NAME] applying individually in their own right [NAME] applying individually in their own right would usually not be approved [NAME] s24 unless they are [NAME] residents at the time of application and decision and also meet the following policy guidelines: • are [NAME] when applying and living with a [NAME] [NAME] who is an [NAME] and who consents to the application or • are usually resident in Australia with a [NAME] [NAME] [NAME] who consents to the application, and that [NAME] [NAME] would meet the residence requirement but has decided not to apply for [NAME] because they would lose the citizenship of another country or • are [NAME] when applying, living with a [NAME] [NAME] who is not an [NAME] and consents to the application, and the [APPELLANT] would otherwise suffer significant hardship or disadvantage - see section 5.17 Ministerial discretion - significant hardship or disadvantage (s22(6)) or • are an [NAME] who falls [NAME] the Minister's guardianship and a delegated guardian has consented to the application, see section 5.12.7 [NAME] (previously wards of the Minister) or • are an [NAME] who does not fall [NAME] the Minister's guardianship and their [NAME] carer has consented to the application, see section 5.12.8 Non-[NAME] (previously [NAME] ([NAME]) non-wards). Other requirements which must be satisfied relating to identity, national security, offences and former [NAME] are set out in section 5.27.1 Minister's decision (s24) - summary. [NAME] applying on the same form and at the same time as a [NAME] [NAME] [NAME] applying on the same form and at the same time as a [NAME] [NAME] would usually not be approved [NAME] s24 unless they are [NAME] residents at the time of application and decision and also meet the following policy guidelines: • the [APPELLANT] was living in Australia with the relevant [NAME] [NAME] and • the relevant [NAME] [NAME] consented to the inclusion of the [APPELLANT] in their application. Other requirements which must be satisfied relating to identity, national security, offences and former [NAME] are set out in section 5.27.1 Minister's decision (s24) - summary. Note: [NAME] must make a separate decision record for each applicant included on the application if the application is to be refused. Note: If a [APPELLANT] [NAME] applies on the same form and at the same time as a [NAME] [NAME], and that [NAME] is refused, the [APPELLANT] must be assessed against the policy guidelines for children [NAME] the age of 16 applying individually in their own right. The parts of section 5.12.5 that are particularly relevant are [RESPONDENT] paragraph (commencing "In the case of …"), the paragraph immediately after the heading "[NAME] applying individually in their own right" and the third bullet point [NAME] that heading. 22 Section 5.17 of the [NAME] is headed "Ministerial discretion – significant hardship or disadvantage (s22(6))". We refer to this section as it is cross-referenced in the third bullet point in section 5.12.5. Section 5.17.2 states, in part, as follows: 5.17.2 What is significant hardship or disadvantage The Macquarie Dictionary Fifth Edition makes the following definitions: significant important; of consequence hardship a condition that bears hard upon one; severe toil, trial, oppression, or need disadvantage absence or deprivation of advantage; any unfavourable circumstance or condition [NAME] would normally be required to demonstrate some or all of the following circumstances: • inability to gain employment on the grounds that the employment is restricted to [NAME], 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 [NAME]) or other (sporting etc) potential is being limited or restricted, because the opportunities to reach that potential is available only to an [NAME], to the extent that it causes significant hardship. Applicants would need to demonstrate that not having citizenship is the only or major cause for the significant hardship or disadvantage. [NAME] 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 [NAME] is the only or major cause of the significant hardship or disadvantage. Evidence is required that [NAME]'s lack of [NAME] is the cause of the: • significant hardship or • disadvantage. For example, a letter from a [NAME], [NAME], [NAME] stating that the person's citizenship status is the only reason they have not been selected, plus a statement in writing from the applicant, with appropriate supporting documentation, evidencing the significant hardship or disadvantage this has caused. The onus is on the applicant to provide the evidence to support the application. [NAME] should also be aware of situations where it appears that [NAME] takes a course of action for the sole purpose of availing themselves of the exercise of this discretion. When making a decision regarding whether [NAME]'s circumstances constitute "significant hardship or disadvantage" officers 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 [NAME] could not meet that need. For example, if [NAME] could not find any employment, and was unable to adequately financially support themselves or their family. Personal wants are aspirations and generally do not constitute hardship (that is, the right to vote, election to Parliament, eligibility for [NAME], representing Australia internationally in academics or sport). [NAME] is not a requirement to study in Australia at the [NAME] or secondary levels. [NAME] universities may admit students who are not [NAME] however eligibility for Commonwealth supported place may be limited to [NAME] or [NAME] [NAME] visa holders. Further information on Commonwealth supported places is available from the Department of Industry, Innovation, Science, Research and Tertiary Education. Education, Science and Training at: http://www.innovation.gov.au/Pages/default.aspx

Background 23 The following summary of the background facts is substantially drawn from the reasons of the [NAME] judge (the Reasons). 24 G was born in Australia. He has a younger brother who was born in Australia in 2011. G has, on the uncontested medical evidence before the Tribunal, a severe language disability, borderline low IQ and Autism Spectrum Disorder. His parents are [NAME] 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 1958 (Cth) from applying again, without a favourable exercise of the Minister's discretion [NAME] s 48B of the Migration Act. 25 [NAME], 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 [NAME] 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 [NAME] family and another family. The Refugee Review Tribunal also made findings about the difficulty for [NAME] in accessing health and related services in Albania. [NAME] was granted a protection visa in January 2013, following the Refugee Review Tribunal findings. 26 [NAME] claim for protection was in large part based on the circumstances of his parents, only [NAME] is the holder of a protection visa. 27 [NAME] became a [NAME], while his parents have remained with no certain migration status, and indeed his father remained in immigration detention at the time of the hearing below. 28 [NAME] mother has a bridging visa which enables her to live in the community with [NAME] and his brother, and to work, which she does. 29 The [NAME] residence status of [NAME] meant he was eligible to apply for [NAME], which he did on 10 February 2015. His application was refused by a delegate of the Minister on 16 July 2015. [NAME] applied to the Tribunal for review of the delegate's decision. The Tribunal affirmed the delegate's decision. 30 The [NAME] judge summarised the Tribunal decision at [71]-[124] of the Reasons. Given the limited nature of the Minister's appeal, it is not necessary for present purposes to outline the Tribunal's decision.

The proceeding before the [NAME] judge 31 G applied to this Court for judicial review of the Tribunal's decision. [NAME] relied on four grounds in his amended originating application. For present purposes it is only necessary to refer to ground 2. By this ground, [NAME] contended that the "Tribunal erred in applying the policy requirement to demonstrate 'significant hardship or disadvantage', such policy requirement being invalid". In the particulars to this ground it was contended that the invalidity arose from the proper construction of the discretion in s 24(2) of the [NAME] Act, being a construction that precludes the importation of "significant hardship or disadvantage".

The Reasons of the [NAME] judge 32 As has been noted, the [NAME] judge upheld all four grounds of review. Given the limited nature of the Minister's appeal, we will focus on the parts of the Reasons relating to ground 2 of the amended originating application (while noting that these parts need to be read in the context of the Reasons as a whole). 33 [NAME] noted that s 24 of the [NAME] Act "confers a general power on the Minister to approve or refuse to approve [NAME] becoming an [NAME]", including "a discretion to refuse citizenship even in circumstances where [NAME] has met the eligibility criteria" (Reasons, [28]). [NAME] stated that this is a "broad discretion" that is "highly discretionary, unless the discretion is controlled by any of the specific sub-sections in s 24" (Reasons, [31]). 34 The [NAME] judge criticised the use of the word "usually" in the [NAME], because "the statute does not condition the discretion by any requirement about how it is to be 'usually' exercised" (Reasons, [46]). The word "usually" was said to impose "a starting premise on a decision-maker that is not contemplated or authorised by the statute" (Reasons, [46]). 35 At [134], the [NAME] judge stated that the bases upon which she upheld grounds 2, 3 and 4 differed "but all have at their core my view about the extent to which the Citizenship [NAME] travel outside the proper range of a policy formulated in an exercise of executive power to guide the exercise of a statutory administrative discretion". [NAME] stated that, on the basis of invalidity articulated in the amended originating application, she found the [NAME] to be unlawful. She also indicated that, had further bases been identified, she may well have found other aspects to be unlawful. 36 At [136], the [NAME] judge discussed s 24 of the [NAME] Act. [NAME] noted that in [NAME] v Minister for Immigration and Citizenship (2012) 199 FCR 404, the [ADDRESS] at [54] approved the description given by [NAME[NAME] in [NAME] v Minister for Immigration and Citizenship (2011) 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. The [NAME] judge stated that that was how she had approached s 24, but she placed more emphasis on the terms of s 24(1). [NAME] stated: "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." 37 The [NAME] judge considered the role of executive policy, especially in the Tribunal, at [139]-[216]. In this section of the Reasons, [NAME] discussed the following authorities: Green v Daniels (1977) 13 ALR 1; [NAME] v Minister for Immigration and [APPELLANT] (1979) 24 ALR 577; [APPELLANT] v Minister for Immigration and [APPELLANT] (No 2) (1979) 2 ALD 634 ([APPELLANT] (No 2)); [APPELLANT] v Minister for Immigration and [APPELLANT] (1981) 34 ALR 639; and Minister for Immigration, [NAME] [APPELLANT] v [NAME] (1994) 50 FCR 189. In the course of considering [NAME] (No 2), the [NAME] judge stated at [161] that [NAME]'s observations at 640 regarding the value of a guiding policy were concerned with consistency of approach to the exercise of a statutory discretion, and had little or nothing to do with consistency of outcome. Having considered these cases, [NAME] discussed the dividing line between a lawful and an unlawful approach to the use of a policy at [200]-[205]. [NAME] then discussed the issue of the lawfulness of a policy itself at [206]-[210]: 206 … I commence with [NAME]'s description in [NAME] (No 2) at 640. [NAME] 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, [NAME] 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 [NAME] also described the boundaries of a lawful policy as one which: • does not "control" the exercise of discretion ([NAME] (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 [NAME] cross. That boundary can best be illustrated by reference, again, to what was said by [NAME[NAME] in [NAME] (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, [NAME], 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 [NAME] 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 [NAME], or the Citizenship [NAME], is it really the case that the structure and content of the policy is such that the impression conveyed to [NAME] 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. 38 The [NAME] judge then considered [NAME]/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 ([NAME]). [NAME] stated that she did not consider anything said by the High Court in that case compelled her to reach a different conclusion on the application (Reasons, [211]). 39 The [NAME] judge dealt specifically with ground 2 at [244]-[262] of the Reasons. The [NAME] judge commenced this section by stating that section 5.12.5 of the [NAME] placed two additional, negative hurdles in the way of a [APPELLANT] applicant: [redacted] (2) [RESPONDENT] was that, if they did not meet the policy guidelines, they must demonstrate their application nevertheless "warrants approval" because of the "unusual nature" of their circumstances. 40 The [NAME] judge noted at [246] that G's unlawfulness ground was confined to the imposition by the [NAME] of the requirement for a [APPELLANT] applicant to demonstrate "significant hardship or disadvantage" if she or he were not to be granted citizenship. G submitted before the [NAME] judge that there were three reasons why that aspect of the [NAME] was invalid: (a) 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 [NAME] Act. (b) The cross reference in the [NAME] to the concept of "significant hardship or disadvantage" in s 22(6) introduces through the "back door" a statutory condition for citizenship that the [NAME] Act imposes only in relation to certain, presently irrelevant, residence situations. (c) 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. 41 The [NAME] judge accepted, at [247], that the [NAME] "in both their structure and their content, do impose a matter in the nature of a precondition on the exercise of the power [NAME] 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". 42 The [NAME] judge noted, at [248]-[249], that G relied on an extract from the explanatory memorandum to the [NAME] 2005 (Cth). After noting that caution is needed when dealing with extrinsic material, and setting out the relevant extract, the [NAME] judge at [250] accepted "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". The [NAME] judge at [251] characterised the power in s 24(2) of the [NAME] Act as a "broad, residual discretion, intended by Parliament to inform the principal statutory task in s 24(1)". The [NAME] judge reasoned at [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 [NAME]. 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. 43 The [NAME] judge, at [253], referred to "the dangers which are associated with repetitive and detailed guidelines or guidelines which encourage giving particular weight to particular factors". After referring to Wong v R (2001) 207 CLR 584, the [NAME] judge reasoned at [257]: I consider the imposition of a prerequisite that an applicant show "significant hardship or disadvantage" crosses the boundaries discussed by [NAME[NAME] in [NAME] (No 2) and [NAME] in [NAME]. For the same reasons given by [NAME] in Green, this aspect of the Citizenship [NAME] 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 [NAME] 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". 44 The [NAME] judge concluded at [261] as follows: I find that part of s 5.12.5 of the Citizenship [NAME], emphasised in bold below, is unlawful: [NAME] applying individually in their own right would usually not be approved [NAME] s24 unless they are [NAME] residents at the time of application and decision and also meet the following policy guidelines: … • are [NAME] when applying, living with a [NAME] [NAME] who is not an [NAME] and consents to the application, and the [APPELLANT] would otherwise suffer significant hardship or disadvantage - see section 5.17 Ministerial discretion - significant hardship or disadvantage (s22(6)) or … 45 This conclusion was subsequently reflected in the declaration set out at [4] above. 46 The key elements of the [NAME] judge's reasoning can be summarised as follows: (a) Section 24 of the [NAME] Act confers a broad discretion that is "highly discretionary" unless the discretion is controlled by one of the specific sub-sections in s 24 (Reasons, [31]). (b) The principles discussed by [NAME[NAME] in [NAME] (No 2) and by [NAME] in [NAME] v [NAME] were to be applied to determine whether an executive policy was inconsistent with the statute and therefore unlawful (Reasons, [206]-[209], [257]). (c) In determining whether a particular policy crosses the boundary, a court must have regard, not only to the language of the policy, but also to its structure and content (Reasons, [210]). (d) The [NAME], in both their structure and content, impose a matter in the nature of a precondition on the exercise of the power [NAME] s 24(1) (or, for that matter, s 24(2)) that is not present in the statute and is inconsistent with it, namely a "default position" of refusal unless a series of additional requirements are met, including a pre-requisite to show "significant hardship or disadvantage" if citizenship is not conferred (Reasons, [247], [252]). (e) This aspect of the [NAME] is not saved by the use of the adjective "usually" in the phrase "would usually not be approved". If anything, the word contributes to the rule-like quality of this aspect of the [NAME] (Reasons, [257]).

The appeal 47 The Minister appeals from part of the judgment of the [NAME] judge, namely from the declaration in paragraph 4 of the orders made on 5 September 2018. The sole ground of appeal is as follows: The [NAME] judge erred in concluding that part of s 5.12.5 of the [NAME] (as re-issued on 1 July 2014) is inconsistent with the [NAME] Act 2007 (Cth) and unlawful. Particulars (a) Section 24(2) of the [NAME] Act 2007 (Cth) confers a broad discretion on the Minister to refuse to approve [NAME] becoming an [NAME]. Contrary to the [NAME] judge's reasons for judgment at [31], the breadth of the discretion justifies rather than limits the making of policy to guide [NAME] in the exercise of that discretion. (b) The [NAME] do not, in terms, impermissibly fetter a decision-maker's consideration and exercise of power [NAME] s 24(2) of the [NAME] Act 2007 (Cth). As the [NAME] judge acknowledged, the [NAME] state that "[NAME] should be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers [NAME] the Act" (Reasons at [37], [38], [210]). And contrary to the [NAME] judge's reasons at [257], use of the term "usually" in policy does not contribute to the "rule-like quality" of the policy, but is a typical expression designed to recognise that [NAME] can and should consider all the circumstances of the case. (c) The [NAME] judge incorrectly interpreted previous authorities as focusing upon consistency of process, which can be a lawful objective of a policy, rather than consistency of outcome, which the [NAME] judge said at [161] cannot be a lawful objective of a policy. (d) The correct approach was to examine the Tribunal's exercise of power in this case, and the Appellant does not challenge the [NAME] judge's conclusion that the Tribunal inflexibly applied the [NAME] in this case. The [NAME] judge erred in attributing the Tribunal's errors of application to the [NAME] themselves.

Consideration 48 The Minister submits that the [NAME] judge was wrong to be so critical of the word "usually" in section 5.12.5 of the [NAME] and wrong to see in the statutory breadth of the discretion in s 24(1) an embedded resistance towards structured guidance through policy. The Minister notes that policies that employ words such as "usually" and "normally" have been upheld in previous cases: see [NAME] v Federal Commissioner of Taxation (2002) 123 FCR 499 at [34]; [COMPANY] (in liq) v [NAME] Commission (2004) 139 FCR 73 ([NAME]) at [156]. See also [COMPANY] v Commissioner of Taxation (2003) 137 FCR 288 at [30]. 49 The Minister submits that the distinction between process and outcome, which the [NAME] judge discerned in the authorities, and which appears to have informed [NAME]'s ultimate conclusion about inconsistency, is unhelpful and inapt. It is submitted that the distinction between process and outcome is unstable, and that this is illustrated by the present case. 50 The Minister submits that it is precisely when discretions are broad that policies are welcome in order to "promote values of consistency and rationality in decision-making": [NAME] at [54]. 51 The Minister submits that the extent to which policy can guide a statutory discretion should, in principle, depend on interpretation of the relevant statutory provisions: see [NAME[NAME], [NAME[NAME] and [NAME] G, Judicial Review of Administrative Action and Government Liability ([NAME], 6th ed, 2017) at [5.270]. It is submitted that s 24(2) is, in express terms, an open-ended discretion that can only be confined, therefore, by the subject-matter, scope and purpose of the [NAME] Act; and that the subject-matter tells against confining the executive's capacity to give guidance to delegated [NAME] on how to go about exercising the discretion. 52 The Minister submits that the effect of the [NAME] judge's reasoning on significant hardship or disadvantage is that, in deciding whether to refuse citizenship [NAME] s 24(2), a decision-maker cannot consider whether [NAME] would suffer significant hardship or disadvantage without being granted citizenship. It is submitted that, contrary to the [NAME] judge's analysis, significant hardship or disadvantage is not a mandatory irrelevant consideration; it is a permissible consideration, which policy can therefore direct [NAME] to take into account: see [NAME] [APPELLANT] v [COMPANY] (1986) 162 CLR 24 at 40; [NAME] v [NAME] (2013) 85 NSWLR 86 at [9]. 53 In relation to the [NAME] judge's concern about the extent to which the [NAME] resemble legal rules, the Minister submits that: the [NAME] judge gave insufficient weight to the language of the introduction to the [NAME] (quoted at [19] above); there is no principle of law that requires the executive to limit itself to policy drafted at any particular level of generality; and, unless the relevant statute, properly construed, precludes detailed policy guidelines being given, it is a matter for the executive as to how to draft its policies. 54 G submits that, because the Minister has not appealed from the orders made by the [NAME] judge setting aside the decision of the Tribunal and remitting the matter for determination according to law, which were made on the basis of all four grounds in the amended originating application, it is not open to the Minister to challenge the [NAME] judge's conclusion that part of the [NAME] was unlawful. [NAME] submits that the Minister's appeal must fail because it neither raises as a ground of appeal, nor shows (or even attempts to show) in written submissions, that the [NAME] judge's exercise of the discretion to make the declaration miscarried. It is submitted that the Minister is seeking, impermissibly, to challenge reasons rather than orders. 55 G submits that even if the issues of construction of the [NAME] Act, and of consistency of part of the [NAME] with it, could properly be said to be before this Court (which is not the case), the Minister: (a) accepts that a policy may exceed limits which are identified having regard to the relevant statute; and that, in determining whether a policy will do so, it is permissible to look at both the structure and content of the policy; and (b) fails to identify error with the conclusion that, properly and contextually construed, section 5.12.5 of the [NAME] "impose[s] a matter in the nature of a precondition on the exercise of the power [NAME] 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" (Reasons, [247]). 56 [NAME] submits that, instead of identifying error, the Minister in his written outline of submissions: (a) makes a de-contextualised attack on what the [NAME] judge said about "usually" and how the term is deployed in this particular policy, which in any event was not central to [NAME]'s reasoning as to invalidity, let alone to her discretion to grant declaratory relief; (b) cites and/or quotes from a range of decisions that either arose in different contexts (i.e. different policies), or are ones where the particular issue in respect of the [NAME] was quite different; and (c) wrongly suggests that at issue is the correctness of an "effects" test, which the Minister contends (i) flows from the [NAME] judge's reasons and (ii) means that "significant hardship or disadvantage" will always be a mandatory irrelevant consideration – whatever might be the precise text of the particular part of the [NAME] – even though this was not how [NAME] concluded the policy was invalid, and once again, in any event, having nothing to do with the exercise of discretion to grant declaratory relief. 57 We will first consider the applicable principles and then address whether the [NAME] judge erred. 58 It is established that an executive policy relating to the exercise of a statutory discretion must be consistent with the relevant statute in the sense that: it must allow the decision-maker to take into account relevant considerations; it must not require the decision-maker to take into account irrelevant considerations; and it must not serve a purpose foreign to the purpose for which the discretionary power was created: see [NAME] (No 2) at 640 per [NAME[NAME]; [COMPANY] v [COMPANY] (2003) 216 CLR 277 at [24] per [NAME]; [NAME] at [159] per [NAME[NAME]. 59 An executive policy will also be inconsistent with the relevant statute if it seeks to preclude consideration of relevant arguments running counter to the policy that might reasonably be advanced in particular cases: [NAME] (No 2) at 640. Thus, an executive policy relating to the exercise of a statutory discretion must leave the decision-maker "free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the [decision-maker] will make in the circumstances of a given case": [NAME] (No 2) at 641. 60 However, as [NAME[NAME] stated in [NAME] (No 2) at 641, "[t]hat is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the [decision-maker] usually applies". In [NAME] v Federal Commissioner of Taxation, [NAME[NAME] stated at [34]: The Commissioner is entitled to adopt a policy to provide guidance as to the exercise of the discretion, provided the policy is consistent with the statute by which the discretion is conferred. Thus if the statute gives a discretion in general terms, the discretion cannot be truncated or confined by an inflexible policy that it shall only be exercised in a limited range of circumstances. A general policy as to how a discretion will "normally" be exercised does not infringe these principles, so long as the applicant is able to put forward reasons why the policy should be changed, or should not be applied in the circumstances of the particular case. [APPELLANT] v Minister for Immigration and [APPELLANT] (No 2) (1979) 2 ALD 634 at 640-641; [APPELLANT] v Minister for Immigration and [APPELLANT] (1986) 74 ALR 480 at 492-493. This passage was approved by [NAME[NAME] in [NAME] at [156]. 61 In [NAME], in the context of considering an executive policy that prioritised the processing of certain categories of visa applications, [NAME], [NAME], [NAME] JJ said at [54]: Policy guidelines like the priorities policy promote values of consistency and rationality in decision-making, and the principle that administrative [NAME] should treat like cases alike. In particular, policies or guidelines may help to promote consistency in "high volume decision-making", such as the determination of applications for Subclass 202 visas. Thus in [APPELLANT] v Minister for Immigration and [APPELLANT] [No 2], [NAME], as President of the Administrative Appeals Tribunal, said that "[n]ot only is it lawful for the Minister to form a guiding policy; its promulgation is desirable" because the adoption of a guiding policy serves, among other things, to assure the integrity of administrative decision-making by "diminishing the importance of individual predilection" and "the inconsistencies which might otherwise appear in a series of decisions". 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. (Footnotes omitted.) Justice Gageler (at [62]) substantially agreed with the reasons of [NAME], Bell, Keane and Gordon JJ. 62 An executive policy that is inconsistent with the relevant statute in the sense described above is unlawful: see [NAME] (No 2) at 641. It is open to the Court to make a declaration to this effect, but whether it is appropriate to do so depends on an application of the general principles regarding the making of declarations, which are discussed in cases such as [NAME] v [COMPANY] (1972) 127 CLR 421 at 437-438. 63 Having regard to these principles, in our respectful view, the [NAME] judge erred in concluding that part of section 5.12.5 of the [NAME] (namely, the words appearing in bold in the declaration set out at [4] above) was inconsistent with the [NAME] Act and unlawful. Our reasons are as follows. 64 First, the statute confers a broad and unfettered discretion in s 24(1) to approve or refuse to approve [NAME] who has made an application [NAME] s 21 becoming an [NAME]. The breadth of the discretion is confirmed by s 24(2), which provides that the Minister may refuse to approve the person becoming an [NAME] despite the person being eligible to become an [NAME] [NAME] s 21(2), (3), (4), (5), (6) or (7). Further, the relevant eligibility category for present purposes, namely that set out in s 21(5), contains little by way of criteria. In contrast with the eligibility criteria in s 21(2), which are more detailed, s 21(5) provides that [NAME] is eligible to become an [NAME] if the Minister is satisfied that the person: (a) is aged [NAME] 18 at the time the person made the application; and (b) is a [NAME] at the time the person made the application and at the time of the Minister's decision on the application. 65 The breadth of the discretion in s 24(1) is not inimical to the adoption of an executive policy, even a detailed executive policy, to guide the exercise of the discretion. To the contrary, the breadth of the discretion tends to support the view that there is no inconsistency between section 5.12.5 of the [NAME] and the statute. Moreover, the adoption of a policy in such a case promotes values of consistency and rationality in decision-making, and the principle that administrative [NAME] should treat like cases alike: see [NAME] at [54]. 66 Secondly, section 5.12.5 of the [NAME] (or at least the part considered by the [NAME] judge to be inconsistent with the statute) allows the decision-maker to take into account relevant considerations and does not require the decision-maker to take into account irrelevant considerations. The [NAME] judge focussed on the reference, in the third bullet point in section 5.12.5, to the applicant suffering "significant hardship or disadvantage" if not granted citizenship. This third bullet point relates to a limited class of applications [NAME] s 21(5): [NAME] who are living with a [NAME] [NAME] who is not an [NAME]. If and to the extent that the [NAME] judge considered "significant hardship or disadvantage" to be an irrelevant consideration (in the sense that it was impermissible for the Minister to take it into account when exercising the discretion to approve or refuse to approve an application for citizenship), we would respectfully disagree with [NAME]. Neither the text of the legislation, nor the objects of the Act, suggests that the Minister cannot take this matter into account in exercising the discretion. The use of the expression "significant hardship or disadvantage" in s 22(6) should not be read as excluding consideration of this matter in the exercise of discretion [NAME] s 24(1). We would not infer that the use of the expression in one context, and its absence in the other, is explicable only on the basis that it was intended to be excluded from the latter. 67 Thirdly, section 5.12.5 of the [NAME] does not serve a purpose foreign to the purpose for which the discretionary power was created. In considering this aspect, regard is to be had both to the discretion in s 24(1) to approve or refuse to approve an application for citizenship, and the relevant eligibility category, namely applicants who satisfy the criteria in s 21(5). 68 The executive has historically had a large role in deciding admission into the [NAME] of the Commonwealth. This is confirmed by the revised explanatory memorandum for the [NAME] 2005 (Cth), which stated in relation to cl 24 of the Bill: It has been a uniform feature of naturalisation legislation (ie. citizenship by conferral) throughout the Commonwealth for over a century to give the Executive a wide discretion regarding the approval or refusal of citizenship. This is because [NAME] by conferral is a privilege and not a right. The new Act will continue to promote this understanding. 69 Further, the revised explanatory memorandum for the [NAME] 2005 (Cth) envisaged the application of an executive policy in relation to proposed s 21(5) as to when an applicant would "usually" and "not usually" be approved. Before setting out the relevant passage, it should be noted that s 21(5) as originally introduced was not in the same terms as the current provision. As originally introduced, s 21(5) provided that [NAME] was eligible to become an [NAME] if the Minister was satisfied that the person was [NAME] 18 years of age at the time the person made the application; the section did not require the person to be a [NAME]. Section s 21(5) was repealed and replaced by the [NAME] (Citizenship Test Review and Other Measures) Act 2009 (Cth). The effect of the amendment was to add the requirement that the person be a [NAME] at the time the person made the application and at the time of the Minister's decision on the application. (The background to the 2009 amendment is helpfully discussed in [NAME], [NAME] ([NAME], 2nd ed, 2017) at [4.700] (chapter authored by [NAME] and [NAME]).) Returning to s 21(5) as originally introduced, the revised explanatory memorandum for the [NAME] 2005 (Cth) made the following observations: Subclause 21(5) outlines the eligibility provisions for citizenship where [NAME] is aged [NAME] 18 years. It specifies that [NAME] is eligible to become an [NAME] if the Minister is satisfied that the person is aged [NAME] 18 at the time the person made the application. This new subsection is the equivalent of section 13(9)(a) of the old Act. As a matter of policy, applications considered [NAME] this subclause would usually be approved if the applicant meets the criteria in subclause (2). That is, the applicant is a [NAME], satisfies the residence requirements, has a basic knowledge of English, the privileges and responsibilities of citizenship, the nature of the application and 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 is of good character. In addition, applications [NAME] this subsection would not usually be approved unless the applicant has a [NAME] [NAME] (as defined by section 6 of this Act) who is an [NAME]. 70 Thus, the revised explanatory memorandum envisaged the existence of an executive policy in relation to s 21(5) (as originally introduced) [NAME] which an application by [NAME] [NAME] 18 would "usually" be approved if the person met the (more detailed) eligibility requirements set out in s 21(2), but "would not usually be approved" unless the applicant had a [NAME] [NAME] who was an [NAME]. There is no suggestion, in the extrinsic materials relating to the 2009 amendments, that the Parliament intended to depart from the approach outlined in the revised explanatory memorandum for the 2005 Bill. 71 The [NAME] judge was concerned that, [NAME] section 5.12.5 of the [NAME], certain applications would usually not be approved unless certain policy guidelines were met. For the reasons indicated, we do not consider the adoption of this policy in relation to certain applications to be contrary to the purpose for which the discretionary power was created. 72 Fourthly, section 5.12.5 of the [NAME] does not preclude an applicant raising arguments as to why the policy should not be applied in the particular case, nor does section 5.12.5 seek to control the outcome of the exercise of the discretion. We note, in particular, the following matters: (a) The introduction to the [NAME] includes the statements that "[d]ecision [NAME] should be mindful that policy must not be applied inflexibly" and that "[p]olicy cannot constrain the exercise of delegated powers [NAME] the Act" (see [19] above). (b) Section 5.12.5 states, in [RESPONDENT] paragraph, that in the case of an applicant who does not meet the policy guidelines below, [NAME] "must consider the full circumstances of the case, including the best interests of the [APPELLANT], to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances" (see [21] above). (c) [NAME] the heading "[NAME] applying individually in their own right", section 5.12.5 states that [NAME] applying individually in their own right would "usually" not be approved [NAME] s 24 unless they meet the policy guidelines there set out. 73 The language used by the section, namely that certain applications would "usually" not be approved unless certain policy guidelines are met, indicates that there will be cases outside the usual course. Thus the policy contemplates that [NAME] may not meet the policy guidelines but their application may nevertheless be approved. In these circumstances, we do not consider it accurate to say that section 5.12.5 of the [NAME] imposes a matter in the nature of a precondition on the exercise of the power [NAME] s 24(1) (cf Reasons, [247]). 74 Fifthly, we do not regard the structure or content of section 5.12.5 as having a rule-like quality such that it purports to control the exercise of the discretion. As already discussed, section 5.12.5 states that children applying individually in their own right would "usually not be approved" unless they meet certain policy guidelines. But it is also stated that, in the case of an applicant who does not meet these guidelines, [NAME] must consider the full circumstances of the case and whether they are unusual. And, as set out in the introduction to the [NAME], the "policy must not be applied inflexibly". 75 Sixthly, the circumstances of this case are quite different from those in [NAME] v [NAME]. In that case, [NAME] held that a policy was inconsistent with a statutory provision regarding the entitlement to unemployment benefits. The statutory provision (set out at 4 of the report) contained specific criteria. As [NAME] said (at 9), "[n]o general discretion is conferred upon [the Director-General]; instead specific criteria are laid down by the Act and all that is left for him to do is to decide whether or not he attains a state of satisfaction that the circumstances exist to which each of these criteria refer". 76 Seventhly, we do not accept [NAME] submission that it is not open to the Minister to challenge the declaration because he has not sought to appeal from the orders of the [NAME] judge setting aside the decision of the Tribunal and remitting the matter for determination according to law. The declaration is a discrete matter and there is no inconsistency between the Minister accepting the correctness of the orders setting aside the decision of the Tribunal and remitting the matter, and challenging the correctness of the declaration. 77 We do not accept [NAME] submission that the Minister's appeal must fail because he does not challenge the [NAME] judge's exercise of the discretion (to make the declaration). It is true that the Minister does not challenge the [NAME] judge's application of the general principles regarding the making of declarations. But the Minister does challenge the making of the declaration, on the basis that the [NAME] judge erred in concluding that the relevant part of the [NAME] was inconsistent with the statute and therefore unlawful. If the Minister's proposition is correct, it follows that the [NAME] judge erred in making the declaration. It is open to the Minister to adopt this approach. Contrary to [NAME] submissions, the Minister is not seeking to challenge reasons rather than orders; the appeal challenges the declaration, which forms part of the orders. 78 For these reasons, we respectfully disagree with the [NAME] judge's conclusion that the relevant parts of section 5.12.5 of the [NAME] are inconsistent with the [NAME] Act.

Conclusion 79 In our view, the appeal should be allowed and the declaration set aside. In relation to costs, the Minister has agreed to pay costs regardless of the outcome. We will make an order to this effect. We will also make an order changing the name of the appellant to the [APPELLANT], as requested by the appellant at the outset of the hearing of the appeal. I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment herein of the [NAME] and [NAME].

Associate: Dated: 21 May 2019