FEDERAL COURT OF AUSTRALIA

Grass v Minister for Immigration and Border Protection [2014] FCA 393

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to ‘Minister for Immigration and Border Protection’.

2.    The application be dismissed with costs.

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

REASONS FOR JUDGMENT

BUCHANAN J:

Introduction

1    This case concerns the circumstances of a permanent resident of Australia who wishes to become a citizen of Australia. At one point her application for citizenship was approved by the first respondent (“the Minister”), but later that approval was cancelled. The question which arises is whether the applicant is entitled to become a citizen and able to insist that the approval remains effective.

The statutory scheme

2    Section 20 of the Australian Citizenship Act 2007 (Cth) (“the Act”) provides that a person becomes a citizen of Australia upon fulfilment (relevantly here) of two conditions, as follows:

20    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.

Note:    Sections 21 to 25 deal with the Minister approving the person becoming an Australian citizen. Sections 26 and 27 deal with the making of a pledge of commitment.

3    Section 21 of the Act allows a person to make an application to the Minister to become an Australian citizen. It then states a number of conditions for eligibility.

4    Amongst the conditions to be satisfied, which are relevant to mention in the present case, are those stated in s 21(2)(b), (g) and (h) which provide:

21    Application and eligibility for citizenship

…

General eligibility

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

…

(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

…

(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.

5    Section 24(1) of the Act provides:

24    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.

6    Section 25(1), (2) and (3) of the Act then provide:

25    Minister may cancel approval

(1)    The Minister may, by writing, cancel an approval given to a person under section 24 if:

(a)    the person has not become an Australian citizen under section 28; and

(b)    either of the following 2 situations apply.

Eligibility criteria not met

(2)    The first situation applies if:

(a)    the person is covered by subsection 21(2), (3) or (4); and

(b)    the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:

(i)    not a permanent resident; or

(ii)    not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia; or

(iii)    not of good character.

Failure to make pledge of commitment

(3)    The second situation applies if:

(a)    the person has failed to make a pledge of commitment within 12 months after the day on which the person received notice of the approval; and

(b)    the person’s reason for the failure is not one that is prescribed by the regulations for the purposes of this subsection.

7    It may readily be seen that the questions which may arise for consideration under s 25(2)(b) are the same ones which arise for consideration under s 21(2)(b), (g) and (h), but they must be considered at the time the Minister is proposing to cancel approval of citizenship, rather than when the Minister is proposing to approve it.

8    Section 26 makes special provision for deferring a pledge of commitment in specified circumstances. Sections 26(3) and (4) are relevant to the argument in the present case. They provide:

26    Pledge of commitment must be made

…

Delayed making of pledge

(3)    If the person is required to make a pledge of commitment and has not done so, the Minister may determine, in writing, that the person cannot make the pledge until the end of a specified period if the Minister is satisfied that:

(a)    a visa held by the person may be cancelled under the Migration Act 1958 (whether or not the person has been given any notice to that effect); or

(b)    the person has been or may be charged with an offence under an Australian law.

(4)    The Minister must not specify a period that exceeds, or periods that in total exceed, 12 months.

Background

9    The applicant holds a permanent visa and is married to an Australian citizen. She applied for Australian citizenship by conferral in March 2009. Her application was approved on 21 May 2009. Normally, the applicant should have made a pledge of commitment within 12 months. If she failed to do so, the approval would be liable to cancellation under s 25(3) of the Act.

10    The power of the Minister under s 26(3) to defer a pledge of commitment was not exercised in the present case. However, within the Department of Immigration and Citizenship (“the Department”) a view developed that the applicant might be disentitled to a grant of citizenship for reasons connected with her character. Arrangements were put in place, without the knowledge of the applicant, which had the effect of delaying the procedures for her to make the pledge of commitment. When the applicant or her husband made enquiries they were reassured that the delay was not irregular. A delegate of the Minister then wrote to the applicant on 5 July 2010 informing her that approval of her application for Australian citizenship had been cancelled because the delegate was satisfied she was not of good character. The cancellation of approval relied upon s 25(2) of the Act and not s 25(3).

11    On 5 December 2011 the applicant’s husband lodged a complaint with the Office of the Commonwealth Ombudsman. The complaint related to an investigation carried out within the Department. That investigation found that the applicant’s citizenship ceremony had been improperly delayed. On 9 July 2012 the Commonwealth Ombudsman wrote to the Department asking what remedial action, if any, the Department proposed to take. Presumably, the Department’s response was not satisfactory to the applicant because on 2 November 2012 she commenced proceedings in the Federal Magistrates Court of Australia (“the FMCA”) under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) seeking that the decision to cancel the earlier approval, dated 5 July 2010, be set aside.

12    On 16 January 2013 the applicant was informed by the Minister’s legal representative that instructions had been given to concede her application on the basis that she had been denied natural justice and the decision of the delegate dated 5 July 2010 was affected by a reasonable apprehension of bias. The Minister’s legal representative proposed that orders be made by consent which would have the effect that the decision to cancel the approval of citizenship was set aside with effect from 8 April 2013 (i.e. some months into the future) and that the applicant would refrain from making any pledge of commitment on or before 22 April 2013. In other words, it was proposed to the applicant that she not become an Australian citizen immediately. That was because, apparently, the Department wanted further time to consider the applicant’s circumstances and, perhaps, to give her a chance to make further representations.

13    The applicant did not agree to the proposed orders and the proceedings continued. At the hearing the Minister conceded that the decision to cancel the approval for citizenship should be set aside but sought deferral of the date from which an order to that effect would operate. It was accepted that if the cancellation decision was not deferred the applicant would be entitled to citizenship upon making a pledge of commitment. The stated purpose of the proposed deferral was to allow a new delegate to revisit the decision to cancel the approval. The applicant’s position was that the decision should be set aside with immediate effect and that she should be permitted to make the pledge of commitment without delay and become an Australian citizen.

14    In a judgment given on 13 February 2013 (Grass v Minister for Immigration [2013] FMCA 74), the FMCA accepted the Minister’s proposal. The FMCA said (at [17]-[24]):

17.    As noted earlier, the applicant pressed her case for immediate operation of the Court’s order by submitting, essentially, that she has waited long enough for her citizenship and she should be able to make the pledge of commitment without further delay. She said that this was particularly so as the delay had already extended beyond the twelve months which, in other circumstances, the Minister could have imposed under s.26 of the Australian Citizenship Act 2007. She also submitted that as the circumstances referred to in s.26 of that Act did not apply in her case, the delay which the Minister now sought was inconsistent with his powers of delay under that section. The burden of this submission was that the Minister was sidestepping the limitations which the Australian Citizenship Act imposed on his powers by seeking an outcome under the ADJR Act which was not available to him under the former Act.

18.    For his part, the Minister submitted that if the Court’s order were to be effective upon pronouncement, in order to forestall the perfection of the applicant’s citizenship and the frustration of his wish to give further consideration to the approval of her application, he might be forced to make a further decision on the issue on an urgent basis at the potential cost of denying the applicant natural justice in the process, which might in turn lead to further judicial review proceedings.

19.    In essence, the Minister says he wants a further opportunity to determine whether the applicant should be admitted to Australian citizenship while the applicant says she should be admitted to citizenship regardless of whether the Minister might now consider it inappropriate to confer that privilege upon her.

20.    The applicant has not pointed to any real disadvantage which she would suffer if there were to be a further short delay. On the other hand, a significant practical advantage likely to flow to her from an immediate operation of the Court’s order would be the Minister’s probable loss of any power to prevent the conferral of citizenship on her as well as a probable inability on his part to revoke any such citizenship attained. However, loss of those possibilities is hardly a form of potential prejudice to which the Court can accord much weight as it would involve a frustration of the Minister’s apparent and not unreasonable desire to determine whether the original decision to approve the applicant’s application for citizenship was the right one.

21.    Further, the fact that the Minister may have no power under the Australian Citizenship Act to delay the applicant making the pledge of commitment, and seemingly had no power to effect the delay which has already occurred, does not affect the power which the Court has to delay the effect of its order. I am willing to accept for present purposes that the earlier actions of the Minister’s department in delaying the applicant’s pledge of commitment were improper but this case involves an issue more significant than administrative impropriety.

22.    Matters as important as the conferral of citizenship on a non-citizen should be considered with the seriousness and care which they deserve. Although the applicant’s citizenship application appears to have been dogged with procedural irregularities and improprieties, and should have reached some form of final resolution before now, that does not justify the Court making a decision other than one which would permit the Minister to decide in a careful and considered way, observing the rules of natural justice, whether Australian citizenship should be conferred on the applicant.

23.    In my view, the order that will do justice between the parties is one which will permit the merits of the applicant’s application for citizenship to be given further careful and deliberate, and final, consideration.

Conclusion

24.    I therefore accept the Minister’s submissions that the order setting aside the cancellation of the approval of the applicant’s application for Australian citizenship be delayed in its operation until 8 April 2013.

(Emphasis added.)

15    The applicant did not seek to appeal against the judgment of the FMCA. Rather, on 3 April 2013, she filed an application in this Court under s 39B of the Judiciary Act 1903 (Cth) seeking writs of certiorari and mandamus against the Minister and a declaration, the combined effect of which orders would be that the judgment of the FMCA would be quashed, the applicant declared entitled to make a pledge of Australian citizenship forthwith and the Minister compelled to facilitate that happening within 14 days.

16    On 8 April 2013, the date upon which the decision of the earlier delegate was set aside by order of the FMCA, another delegate made a further decision to cancel the approval of the application for conferral of Australian citizenship on 21 May 2009 on the basis that the applicant is not of good character. The applicant was found not to be of good character for the following reasons:

•    you have previously been an unlawful in Australia for a period of approximately 2 years and during that time will [sic] worked unlawful [sic] in Australia.

•    you have demonstrated a pattern of false and deliberate misrepresentation concerning information relating to your identity.

•    you have provided false information in numerous contexts, including to the Australian Tax Office, the NSW Registry of Births, Deaths and Marriages, to your employer(s) in Australia, to the United Kingdom immigration authorities, and in your dealing with the Department.

•    you are in a bigamous marriage in breach of the Marriage Act 1961 (Cth).

17    On 16 April 2013 the applicant’s husband filed an application in the Administrative Appeals Tribunal (“the AAT”) for review of the second delegate’s decision. The application was subsequently withdrawn. In an affidavit sworn in the present proceedings the applicant’s husband stated that he withdrew his application to the AAT out of concern about the evidence which the applicant might need to give under cross-examination in the AAT about some events which were distressing and highly personal to her.

18    On 12 June 2013 the application to this Court was amended to include seeking of a declaration that the decision of the delegate on 8 April 2013 is void and of no effect.

19    At the hearing, I allowed a further amendment to seek a declaration that the decision of the first delegate on 5 July 2010 was also void and of no effect. That amendment was thought necessary to avoid the consequence that setting aside the judgment of the FMCA might formally revive the decision of the first delegate.

The applicant’s contentions

20    In the present case the applicant initially sought to make good two propositions. First, that the FMCA had no power under the ADJR Act to defer the effect of the order made on 13 February 2013 to 8 April 2013. Secondly, that the asserted error in the exercise of the jurisdiction of the FMCA had the consequence that it was not open to the second delegate to cancel the approval on 8 April 2013.

21    However, I do not understand how the second proposition follows from the first. Whether the first delegate’s decision was set aside from the date of judgment (13 February 2013), or from 8 April 2013, the central question is whether it remained open to the Minister to cancel the approval given on 21 May 2009 after the decision of the first delegate was set aside.

22    Subject to the next argument to be identified, it does not matter in my view whether the order made by the FMCA took effect on the date it was made (13 February 2013) or on 8 April 2013. That is because, whatever might have been the opportunities available to the applicant to quickly make a pledge of commitment once the decision of the first delegate was set aside (if she could arrange to do so before the Minister could make a further decision), the fact is that such a pledge of commitment was not made before 8 April 2013. Section 20 of the Act makes a pledge of commitment a fundamental condition for citizenship. The applicant could not be a citizen without making a pledge of commitment, whatever error might have been made by the FMCA. The applicant’s case, therefore, had to focus on the decision of the second delegate, and show it was invalid.

23    The argument advanced by the applicant to suggest that the decision of the second delegate was invalid did not depend on attacking the decision of the FMCA. The argument was that the only power which the Minister had to defer giving effect to the approval of 21 May 2009 was the power given by s 26(3) and (4) of the Act and, if a decision to cancel was not made within the period there specified, the Minister had no power to cancel the approval or prevent a pledge of commitment being made. When the decision of the first delegate was set aside, so it was argued, the period had expired and the applicant had a right to become a citizen.

24    Before I deal with that argument I will address the contention that the FMCA made a jurisdictional error although, as I have said, it does not seem to me to be of any real significance for the applicant’s case in this Court whether the order of the FMCA took effect on 13 February 2013 or 8 April 2013.

25    The proceedings before the FMCA were based upon the ADJR Act. In particular, they were based on s 5(1)(a) of the ADJR Act which permits a court to set aside a decision on the ground of denial of natural justice.

26    Section 16(1) of the ADJR Act provides:

16    Powers of the Federal Court and the Federal Magistrates Court in respect of applications for order of review

(1)    On an application for an order of review in respect of a decision, the Federal Court or the Federal Magistrates Court may, in its discretion, make all or any of the following orders:

(a)    an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the court specifies;

(b)    an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the court thinks fit;

(c)    an order declaring the rights of the parties in respect of any matter to which the decision relates;

(d)    an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.

(Emphasis added.)

27    It therefore appears from the ADJR Act that a decision made in denial of natural justice might be set aside from a date chosen by the court in question in the exercise of its discretion. It is well established that even unlawful administrative decisions may have some effect until withdrawn or set aside (e.g. Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 at 342-3, 363; 24 ALR 307 at 314-5, 331). The decision of the first delegate, although unlawful, remained in place until set aside. The date on which that was to occur was within the discretion of the FMCA, having regard to all the circumstances.

28    The FMCA was well aware of the nature of the discretion which it was called upon to exercise. The decision of the FMCA referred to two judgments of Full Courts of this Court concerning the operation, meaning and effect of s 16(1)(a). In Wattmaster Alco Pty Ltd v Button (1986) 13 FCR 253 (“Wattmaster”) the Court said (at 256-7):

Having in mind what is involved in “setting aside” or “quashing” (as to which see Commissioner for Railways v Cavanough (1935) 53 CLR 220 at 225) it may, at first sight, seem strange to speak of setting at naught a decision as at a particular date. However, it is consonant with the general scope and purpose of the Act and its varied application that there may be cases in which a decision is to be set aside, and, according to ordinary understanding, to become a nullity, but in which the nullifying should nevertheless take effect from some later date. The provision of such an option provides greater flexibility than is available with a writ of certiorari, which quashes a decision ab initio. Of course, the issue of the prerogative writs is a matter of discretion. They may be issued on terms; and a relevant consideration could be the conduct of the applicant, and of the respondent party, since the making of the order sought to be quashed, or set aside. In R v Greater London Council,·Ex parte Blackburn [1976] 1 WLR 550 the making of an order of prohibition was postponed to allow the defendant Council to take certain action. The processes of the Court when granting relief under the Administrative Decisions (Judicial Review) Act are very wide and considerations going to the date as at which an order is to take effect quite naturally fit the general scheme.

In our opinion no presumption arises under s 16(1)(a) as to the appropriate date from which a decision should be quashed or set aside. The matter is left entirely to the discretion of the Court. Neither is there any onus upon any party to demonstrate a special reason for selecting a date other than the date of the order. It is for the Court, having regard to all relevant circumstances, to select amongst the alternatives the date which will best do justice as between the parties and any other affected persons.

(Emphasis added.)

29    In Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1, Gray and Downes JJ said (at [44]):

44    … The grounds specified in s 5 of the ADJR Act, upon which the Court may make orders in respect of administrative decisions, are not expressed in terms of jurisdictional error. At least in some cases, those grounds include errors that are not necessarily described as jurisdictional errors. An example is the ground in s 5(1)(f), that the decision involved an error of law. See Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [27] and [57] per McHugh and Gummow JJ. It might be thought that, in enacting s 16(1)(a) of the ADJR Act, which permits the Court to quash or set aside a decision with effect from the date of the order or from such earlier or later date as the Court specifies, Parliament was acting on the assumption that even a decision tainted by jurisdictional error could have some force and effect, and leaving it to the Court to decide what force and effect should be accorded to such a decision. It must also be clear that, to the extent to which s 5 of the ADJR Act confers jurisdiction in respect of a “decision”, it was intended that there should be jurisdiction, whether or not the decision concerned was subject to jurisdictional error. …

(Emphasis added.)

30    Their Honours went on to refer to, and apply, Wattmaster (at [46]-[47]).

31    Kenny J also referred to Wattmaster and said (at [79]):

79    … In particular, the remedies available under s 16 of the AD(JR) Act are broader and more flexible than those available at common law. …

32    I consider that I am bound to conclude that it was open to the FMCA to select a date from which the decision of the first delegate would be set aside and there was no jurisdictional error in setting aside the decision of the first delegate from 8 April 2013.

33    The applicant next argued that the power given to the Minister to defer the making of a pledge of commitment under s 26 of the Act imposed a limit on the power which the Minister had to cancel an approval. According to this argument the period had expired before the decision of the second delegate on 8 April 2013. Therefore, the applicant contended, it was not open to the Minister (or a delegate) to then cancel the approval of 21 May 2009 and the applicant must be allowed to become a citizen by making a pledge of commitment.

34    The argument, if it is accepted, would operate quite independently of any challenge to the judgment of the FMCA which, on the contrary if the applicant is to succeed, should be allowed to stand so that the decision of the first delegate remained set aside.

35    The first difficulty for the argument lies in identifying the time at which the suggested time limit arising from the operation of s 26 would expire. Although s 26(4) limits any period, or periods, of deferral to a total of 12 months, the only restrictions on the Minister’s power to use s 26(3) are the necessity to do so for one of the reasons stated by s 26(3), coupled with the fact that an applicant has not, at that point, made the pledge. The Minister’s power is not affected by any expectation that a pledge would normally be made within 12 months, failing which an approval might be cancelled for that reason (s 25(3)). Any time limit associated with s 26(3) has therefore not expired in the applicant’s case.

36    The next difficulty which this argument faces is that it is founded upon the contention that any time limit imposed by s 26(4) affects the exercise of the Minister’s discretion under s 25(2).

37    In the present case, the Minister’s delegate did not use the power under s 26(3) of the Act to defer making the pledge of commitment. Nor was the approval cancelled because the pledge had not been made. Approval of the application for citizenship was cancelled on 8 April 2013 because the second delegate decided the applicant was not of good character.

38    The applicant’s argument depends upon treating s 26(3) and (4) as directed to the same matters dealt with in s 25(2)(b), or at least to the same issue as s 25(2)(b)(iii). Even if that was so, that would not mean that the decision made on 8 April 2013 was invalid because, as I have explained, the time limit imposed by s 26(4) has not expired, or begun to run.

39    More importantly, s 26(3) does not limit the operation of s 25(2).

40    It is clear that s 25(2) is directed to a consideration of the matters referred to in s 21(2)(b), (g) or (h). Cancellation of an earlier approval requires a decision that a specified condition is not satisfied. The possibilities are not exhausted by the matters referred to in s 26(3). Those possibilities are not exhausted even if attention is confined to s 25(2)(b)(iii).

41    It is possible that, in a given case, s 26(3) and s 25(2) might each be relied upon. A determination under s 26(3) might delay an applicant making the pledge of commitment and a delegate might later make a decision under s 25(2)(b). That is not what occurred in the present case and the existence of that possibility does not govern the operation of s 25(2)(b). Whether or not s 26(3) is available and whether or not s 26(3) is used, cancellation of approval under s 25(2)(b) need only satisfy the conditions there stated, not those in s 26(3).

42    Section 25(1) makes it clear that until a pledge has been made (where that is required by s 20(b) of the Act), it is open to the Minister to cancel an approval on any of the grounds stated in s 25(2)(b). The power of cancellation in s 25(2)(b) was not affected by the error made by the first delegate. Even though it is accepted by the Minister that it was not open to the first delegate to impede the processing of the steps which would normally lead to the applicant having an opportunity to make the pledge that does not mean that the applicant acquired an enforceable right to compel the Minister to allow her to become a citizen despite the findings which the second delegate made about her character.

43    It follows from the foregoing discussion that there is no independent basis to set aside the second delegate’s decision of 8 April 2013.

44    The application to this Court should be dismissed with costs.

Associate:

Dated:    23 April 2014