FEDERAL COURT OF AUSTRALIA

Zhao v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 998

ORDERS

THE COURT DECLARES THAT:

1.    The Fourth Applicant is entitled to make the pledge of commitment before any person specified in section 27(3) of the Australian Citizenship Act 2007 (Cth), wherever that person is located, and such persons are authorised to receive such a pledge of commitment from the Applicant.

AND THE COURT ORDERS THAT:

1.    The determination made on 6 December 2019 under s 26(3) of the Australian Citizenship Act 2007 (Cth) in respect to the Fourth Applicant is quashed.

2.    The proceeding is dismissed.

3.    The Respondent is to pay the costs of the Fourth Applicant, either as agreed or taxed.

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

REASONS FOR JUDGMENT

FLICK J:

1    On 27 February 2020, the Applicants filed in this Court an Originating Application. The Applicants were Mr Long Zhao, Ms Wenjuan Liu, Mr Shuoqi Zhao, Mr Jianzhong Yang, Kaijun Yang, and Kaiyi Yang. Mr Long Zhao and Ms Liu are husband and wife and Mr Shuoqi Zhao is their son. Mr Jianzhong Yang is the father of the remaining Applicants.

2    The Originating Application seeks review of “decisions purportedly made by a delegate of the respondent under section 26(3) of the Australian Citizenship Act 2007 (Cth) …, as notified by letters dated 6 December 2019…, … to the effect that the applicants cannot make the pledge of commitment to become an Australian citizen before 6 December 2020…”.

3    The Application that remains to be resolved is that made by Mr Yang (the Fourth Applicant) and his two children (the Fifth and Sixth Applicants). Other than potentially in respect to a question of costs, the relief sought by Mr Zhao, his wife and son (namely the First to Third Applicants) is no longer pressed.

4    With reference to Mr Yang’s Application, it was in February 2019 that he was advised that his application for citizenship had been approved and he was subsequently invited to attend a citizenship ceremony on 1 May 2019. On the day before, however, he was advised not to attend the ceremony and that it would be rescheduled. It was not until 6 December 2019 that Mr Yang was advised by a delegate of the Minister that a determination had been made pursuant to s 26(3) of the Australian Citizenship Act 2007 (Cth) (the “Australian Citizenship Act”) that he could not make a pledge of commitment before 6 December 2020. It is the decision made on 6 December 2019 concerning Mr Yang which continues to assume importance. The First and Second Applicants have already made their pledge of commitment. On Mr Yang’s behalf, it is contended that the December 2019 decision is vitiated by reason of:

    a denial of procedural fairness; and/or

    an absence of evidence or irrationality or the taking into account of an irrelevant consideration.

5    In addition to an order quashing the decision in relation to Mr Yang and his children, declaratory relief is also sought as to the entitlement of Mr Yang to make a pledge of commitment. It is concluded that there has been a denial of procedural fairness and that the decision in respect to Mr Yang should be set aside. Declaratory relief should also be granted together with an order for the payment of his costs.

The 6 December 2019 decision

6    The decision conveyed to Mr Yang by way of a letter dated 6 December 2019 was expressed as follows:

Dear Mr Jianzhong YANG

Acquisition of Australian citizenship delayed

I am writing regarding your application for Australian citizenship which was approved on 4th February 2019.

Subsection 26(3) of the Australian Citizenship Act 2007 provides that the Minister (or the Minister’s delegate) may determine, in writing, that a person cannot make a pledge of commitment until the end of a specified period if the Minister is satisfied that:

•    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

•    The person has been or may be charged with an offence under an Australian law.

Determination to delay the making of the pledge of commitment

I have determined that you cannot make a pledge of commitment before 6th December 2020 because information has been received that means your permanent resident visa may be cancelled. The Department will contact you to advise you of the outcome of your case and what further action may be required.

A pledge of commitment made before the end of the period set out above will have no effect.

7    On 20 December 2019, reasons for this decision were sought pursuant to s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the “Judicial Review Act”). Those reasons were provided on 30 January 2020 and provided as follows (without alteration):

Request for reasons under section 13 of the Administrative Decision (Judicial Review) Act 1977

As of the 6th December 2019, I a delegate of the Minister (Position number: 60061999) for the purposes of s 26(3) of the Australian Citizenship Act 2007 and made a determination under that provision relating to Mr Jianzhong YANG.

The Weekend Australian newspaper published an article on 2 March 2019 alleging that the ASF group and Marine Parade Holdings provided incorrect salary information for its employees to the Department of Home Affairs (the Department) to assist its employees with obtaining work visas. The Department subsequently received an allegation from a member of the public that corroborated information contained in the Weekend Australian newspaper article, related to declaring incorrect salary information to obtain visas.

This information was referred to various areas within the Department and external agencies for investigation into the ASF group, Marine Parade Holdings and associated companies to determine if there were any grounds to consider cancellation of those employees’ visas.

The Newspaper article mentioned that Marine Parade Holdings was operated by Mr Yang and it was due to this information and the allegation that Mr Yang was referred for consideration of cancellation of his Resident Return visa (RRV) on the basis of incorrect information provided in support of his application for the Employer Nominated Visa. The Employer Nominated Visa ceased, upon the grant of Mr Yang’s RRV. It was on this basis that I was satisfied that Mr Yang’s visa may be cancelled under the Migration Act 1958. I therefore determined for the purposes of subsection 26(3) of the Australian Citizenship Act 2007 that Mr Yang cannot make the pledge of commitment until 6 December 2020.

Yours sincerely

…

(personal details omitted)

The Australian Citizenship Act 2007

8    Section 26 of the Australian Citizenship Act provides as follows:

Pledge of commitment must be made

(1)    A person must make a pledge of commitment to become an Australian citizen unless the person:

(a)    is aged under 16 at the time the person made the application to become an Australian citizen; or

(b)    has a permanent or enduring physical or mental incapacity, at the time the person made the application to become an Australian citizen, that means the person:

(i)    is not capable of understanding the nature of the application at that time; or

(ii)    is not capable of demonstrating a basic knowledge of the English language at that time; or

(iii)    is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time; or

  (c)    is covered by subsection 21(6), (7) or (8).

…

(2)    A person must not make a pledge of commitment before the Minister approves the person's application to become an Australian citizen. A pledge of commitment made by the person before that time is of no effect.

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.

(5)    The Minister may, by writing, revoke a determination.

(6)    If a determination is in force in relation to a person, the person must not make a pledge of commitment before the end of the period specified in the determination. A pledge of commitment made by the person before that time is of no effect.

A denial of procedural fairness?

9    On behalf of Mr Yang it is contended that:

    the rules of procedural fairness apply to the making of a “determination” pursuant to s 26(3);

and that there was a denial of procedural fairness by reason of:

    the failure to provide any advance notice of the making of such a determination; and/or

    the failure to “provide [him] with an opportunity to be heard in respect of those decisions”.

10    The Respondent Minister accepts that if he “was obliged to give Mr Yang prior notice of [the making of the 6 December 2019 decision] and an opportunity to make representations about why such a decision ought not to be made” he did not discharge “that obligation”. The “Minister’s submission is that such a hearing was not required, either because that was not part of the content of procedural fairness in the circumstances, or because the rules of procedural fairness to that extent were impliedly excluded by the Act”. To the extent that there is a difference between these two limbs to the one submission, both limbs of the submission are rejected.

11    In the absence of either an express or implied exclusion of the rules of procedural fairness, those rules “generally” apply when a decision affects a claimant’s right, property or interest: Kioa v West (1985) 159 CLR 550 at 582 (“Kioa v West”). Mason J (as his Honour then was) summarised the position as follows:

It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of the benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it ... The reference to “right or interest” in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation as well as to proprietary rights and interests ...

His Honour also later observed (at 584):

The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention …:

These observations have since been repeatedly cited with approval: e.g., Huddleston v Aboriginal Land Commissioner [2010] FCAFC 66 at [36], (2010) 184 FCR 551 at 560-561 per Keane CJ, Spender and Barker JJ.

12    As recognised in Kioa v West, the general application of the common law rules of procedural fairness can be excluded by a “contrary statutory intention”. But the exclusion of those rules is not to be lightly assumed: Commissioner of Police v Tanos (1958) 98 CLR 383 at 396 (“Tanos”). Dixon CJ and Webb J there observed:

… But the rule is subject to a sufficient indication of an intention of the legislature to the contrary. Such an intention is not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations. The intention must satisfactorily appear from express words of plain intendment. …

Partly in reliance upon Tanos, Mason CJ, Deane and McHugh JJ in Annetts v McCann (1990) 170 CLR 596 at 598 expressed the circumstances in which the common law would apply and the legislative ability to exclude those rules as follows:

It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment: …

(citations omitted)

See also: Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4 at [182], (2008) 234 CLR 532 at 595-596 per Crennan J; Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7 at [152], (2013) 252 CLR 38 at 98 per Hayne, Crennan, Kiefel and Bell JJ.

13    The Australian Citizenship Act did not expressly exclude the common law rules – as some Commonwealth legislation in more recent years has done: e.g., Migration Act 1958 (Cth) (the “Migration Act”). See: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22, (2001) 206 CLR 57; Plaintiff S10-2011 v Minister for Immigration and Citizenship [2012] HCA 31 at [97] to [101], (2012) 246 CLR 636 at 666-668 per Gummow, Hayne, Crennan and Bell JJ.

14    But in support of its contention that the statutory scheme of the Australian Citizenship Act has impliedly excluded those rules, the Respondent relies upon:

    the prospect that advance notice may thwart any exercise of power under s 26(3);

    the nature of the criteria specified in s 26(3) being such that an affected person “is unlikely to be able to make meaningful representations”; and

    the fact that an affected person may have a subsequent opportunity to be heard, namely an opportunity to seek pursuant to s 26(5) the revocation of a “determination” made pursuant to s 26(3).

None of these arguments, with respect, are persuasive. Of particular importance are the terms in which the power conferred by s 26(3) is expressed – namely a power to make a “determination” if satisfied as to either of those matters specified in s 26(3)(a) or (b).

15    As to the first of these three contentions, there are circumstances in which the giving of advance notice may thwart or frustrate the making of decisions: e.g., Leghaei v Director-General of Security [2005] FCA 1576 at [88] per Madgwick J. An appeal was dismissed: Leghaei v Director-General of Security [2007] FCAFC 37, (2007) 97 ALD 516. See also: Soh v Commonwealth [2008] FCA 520 at [94] to [96], (2008) 220 FCR 127 at 146-147 per Madgwick J. And there may be circumstances in which the statutory considerations a decision-maker needs to take into account may create obstacles in the path of a person seeking to make submissions. Even then, however, courts are loathe to exclude the rules of procedural fairness: e.g., Century Metals & Mining NL v Yeomans (1989) 40 FCR 564 at 588 per Fisher, Wilcox and Spender JJ. Such is not the present case. If it be the case that advance notice is frequently given of an intention to consider cancelling a visa, it is unclear why advance notice of an intention to make a “determination” under s 26(3) would be any more likely to thwart the administration of the Australian Citizenship Act than the giving of advance notice of an intention to revoke a visa would frustrate the administration of the Migration Act. Those who may accept “a pledge of commitment” remain subject to the control of the Minister and there is no reason to suggest that advance notice could not be given to those persons not to accept a “pledge” in advance of a decision being made.

16    Insofar as it is contended on behalf of the Respondent that the nature of the criteria specified in s 26(3) are such that an affected person “is unlikely to make meaningful representations”, that contention is – with respect – without substance. It is far from uncommon to afford a person an opportunity to make submissions as to why a visa should not be cancelled. Indeed, it is generally the case that a person should be afforded such an opportunity. And, if the Minister is considering the relevance of the fact that a person has been charged with an offence, there is every reason why an affected person should be afforded an opportunity to be heard and such a person may well be in the best position to make submissions as to the nature of the offence in question and the circumstances in which it was committed (if at all). If the matter being considered is the prospect that an affected person “may be charged with an offence”, the ability of an affected person to make submissions as to why that person should not be charged may well be limited – but the ability to make submissions as to the nature of the possible offence and its relevance to decisions under the Australian Citizenship Act remain a valuable opportunity which should not lightly be discounted.

17    The fact that an affected person may seek pursuant to s 26(5) the revocation of a “determination” made pursuant to s 26(3), with respect, provides no reason why an opportunity to be heard should not be provided when making the initial “determination”. Although it may be accepted that a subsequent opportunity to be heard may, in an appropriate legislative context, provide a basis for excluding an opportunity to be heard at an earlier point of time or to “remedy” an earlier denial of procedural fairness (c.f., Carroll v Sydney City Council (1989) 15 NSWLR 541 at 548-549 per McHugh JA (Kirby P and Clarke JA agreeing); Day v Harness Racing New South Wales [2014] NSWCA 423 at [104], (2014) 88 NSWLR 594 at 615 per Leeming JA (McColl and Macfarlan JJA agreeing)), such an opportunity in the present context provides no such reason. Of importance is the fact that the power to make a “determination” pursuant to s 26(3) is confined to the Minister being “satisfied” of either of the two matters specified in s 26(3)(a) or (b). And in reaching a state of “satisfaction”, neither of those two matters is of such a character that the Minister should not normally be required to give advance notice. There is no reason to infer that a procedurally unfair decision can be remedied by a subsequent procedurally fair opportunity to be heard.

18    Specifically rejected is the submission made on behalf of the Respondent Minister that “Parliament can be seen to have abrogated by necessary implication any otherwise implied obligation to afford a hearing in advance of the determination” by reason of depriving a pledge of commitment of legal effect only “if a determination is in force”: s 26(6). No implication can be drawn from s 26(6) – that being a provision which simply expressly states a pledge of commitment cannot be made “before the end of the period specified in the determination”. Why such an express statement as to the effect of a determination being “in force” impliedly excludes an obligation to afford procedural fairness before making such a determination remained elusive; indeed, if anything, s 26(6) only supports the imperative of providing a prior opportunity to be heard.

19    None of the considerations relied upon by the Respondent Minister support any implication that a decision made pursuant to s 26(3) need not attract the rules of procedural fairness. The considerations relied upon by the Respondent rise no higher than “indirect references, uncertain inferences or equivocal considerations”: Tanos (1958) 98 CLR at 396. In the absence of a “determination” being made pursuant to s 26(3) of the Australian Citizenship Act, Mr Yang had a sufficiently certain “interest” or a “legitimate expectation” that he could proceed to make a pledge of citizenship, and that “interest” or “expectation” was sufficient to attract the rules of procedural fairness: Kioa v West (1985) 159 CLR at 582. His application for citizenship (and those of his dependent children) had been approved in February 2019 and the last remaining step to him achieving citizenship was the making of a pledge of commitment.

20    But the content of the rules of procedural fairness is necessarily dictated by not only the statutory context in which a decision is made but also the facts and circumstances of an individual case. “What is fair in a given situation”, it has been said, “depends upon the circumstances”: Mobil Oil Australia Pty Ltd v Commissioner of Taxation (1963) 113 CLR 475 at 504 per Kitto J (“Mobil Oil”). “What is appropriate in terms of natural justice depends on the circumstances of the case…”: Kioa v West (1985) 159 CLR at 584-585 per Mason J. In that case Brennan J stated the following generally expressed principles (at 628 to 629):

A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise … The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by enquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made. Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed. …

Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account. …

(citations omitted)

21    Given the terms of the 6 December 2019 letter, there would appear to be nothing (or at least, very little) of a confidential nature. The source of concern which occasioned the determination of the delegate seems to have been a newspaper article. But perhaps there was something confidential in the “allegation from a member of the public…”. Whether that was so can presently be placed to one side. It may be assumed that at least some information could be identified and disclosed to Mr Yang, even if only what it was in the newspaper article which attracted the concern, or whatever other available material invited the scrutiny of the Department. But nothing was disclosed to Mr Yang. And it would be difficult to envisage circumstances in which any prior disclosure of the fact that consideration was being given to make a “determination” under s 26(3) may prejudice that decision-making task. A decision to cancel a visa may, for example, occasion the visa holder to flee and avoid being taken into detention or occasion a destruction of documents. But such cases are ones in which the visa holder retains within their own power the ability to prejudice or place at risk the decision-making process. Such is not the present case. The completion of the citizenship process remains within the control of the Respondent. And Mr Yang seems to be a person of some prominence, given the suggestion that he is the “operator” of Marine Parade Holdings. The Respondent did not even attempt to adduce evidence that Mr Yang would himself seek to thwart the decision-making process if he was given advance notice of the consideration being given to the making of a “determination”. If anything, he was seeking the completion of the decision-making process. Any such risk to the administration of the Act was left to some uncertain process of adverse inferences.

22    The content of the opportunity which should have been extended to Mr Yang in the circumstances of the present case was not only advance notice that consideration was being given to the making of a “determination” under s 26(3), but also the disclosure of all such material as was sought to be relied upon: Mobil Oil (1963) 113 CLR at 504 per Kitto J. That did not happen. Mr Yang was left to speculate as to why his approval for citizenship had not progressed through to him making a pledge of commitment. That speculation included whether the article in The Weekend Australian newspaper in March 2019 had impacted the decision-making process.

23    It is concluded that the rules of procedural fairness applied to the decision made in December 2019 in respect to Mr Yang and that those rules were breached by reason of the non-disclosure to him of any information in advance of the decision being made. If the rules applied and prior notice was required, the Minister accepted that Mr Yang was not given any notice prior to receiving notification of the decision having been made.

24    In reaching this conclusion it is unnecessary to make further findings as to whether the circumstances of Mr Yang’s application and the decision made in December 2019 also involved those within the Department providing misleading information. Those circumstances included an inquiry made on Mr Yang’s behalf by the Honourable Tania Pliberseck MP provoking a response from the Department in October 2019 that Mr Yang’s application “remains under consideration”.

Absence of evidence, irrationality & irrelevant considerations

25    Given the conclusion that there has been a denial of procedural fairness, it is unnecessary to resolve the alternative arguments relied on by the Applicant as to the decision being based upon “no evidence” or was “irrational” or based upon an “irrelevant consideration”.

26    But such grounds should be briefly addressed.

27    These grounds of review, variously expressed as an absence of evidence or irrationality or the taking into account of an irrelevant consideration, focus on the statement of reasons given pursuant to s 13 of the Judicial Review Act and, in particular, the statement that:

The newspaper article mentioned that Marine Parade Holdings was operated by Mr Yang and it was due to this information and the allegation that Mr Yang was referred for consideration of cancellation of his Resident Return visa (RRV) on the basis of incorrect information provided in support of his application for the Employer Nominated Visa. …

The gist of the argument sought to be advanced is that Mr Yang never obtained a visa relying on information from Marine Parade Holdings as his employer. Mr Yang’s visa was one obtained based on an application in August 2012 sponsored by his then employer, then known as ASF Kaili Resource Pty Ltd.

28    The object and purpose sought to be achieved by s 13 of the Judicial Review Act is not only to impose upon a decision-maker the necessity of applying a requisite discipline upon the decision-making process being undertaken – but also to inform an affected person as to the basis upon which a decision has been made and to expose whether the decision has been made in accordance with law: cf. Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 at [105], (2003) 216 CLR 212 at 242 per Kirby J. The terms in which the reasons in the present case have been drafted certainly leave a lot to be desired. Even accepting that reasons are not to be scrutinized with an eye attuned to the detection of error (cf. Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ), the reasons provided in the present case fail to clearly inform those advising Mr Yang of the reasons for the 6 December 2019 decision. But enough can be gleaned from the reasons provided to satisfactorily address the arguments advanced on his behalf.

29    Divorced from its context, the extracted passage from the reasons provided is curiously expressed. Even in context, the extracted passage is uncertain in content. The “allegation” being referred to may be construed as the “allegation” that the “the ASF group and Marine Parade Holdings provided incorrect salary information for its employees to the Department … to assist its employees with obtaining work visas”. Or the “allegation” could be a reference to whether Mr Yang “operated” Marine Parade Holdings. But the “basis” on which Mr Yang was “referred for consideration” was unequivocally expressed as being “incorrect information provided in support of his application” for his visa. Left uncertain is whether the author was expressing a concern as to whether Mr Yang had obtained a visa on the basis of incorrect information provided by Marine Parade Holdings. Although Mr Yang may never have obtained a visa relying on information provided by Marine Parade Holdings, read in context the statement of reasons expresses an investigation “into the ASF Group…”.

30    Whether that concern may be justified or not, and whether incorrect information had in fact been provided, there remains the fact that an investigation had been initiated into a concern that “the ASF Group and Marine Parade Holdings provided incorrect salary information … to assist its employees with obtaining work visas”. It was open to the Minister (or his delegate) to be “satisfied that a… visa may be cancelled…”. The decision made by the delegate, it is concluded, was within the area of “decisional freedom” entrusted to that delegate – and not this Court – to make: Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 at [62] to [63], (2016) 240 FCR 158 at 171-172 per Allsop CJ, Griffiths and Wigney JJ. Based upon the information set forth in the 6 December 2019 letter, there was “room for a logical or rational” delegate to make the determination in fact made and it matters not whether a different delegate (or this Court) may have reached a different conclusion: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 [131] to [135], (2010) 240 CLR 611 at 648 to 650 per Crennan and Bell JJ.

31    Nor could it be said that there was “no evidence” upon which the “determination” could be made. In employing the ground of review characterised as “no evidence”, it is to be constantly recalled that “an administrative decision-maker is usually entitled to take into account material which would not count as ‘evidence’ in a judicial context”: L & B Linings Pty Ltd v Workcover Authority of New South Wales [2012] NSWCA 15 at [34] per Basten JA (McColl and Whealy JJA agreeing). And the statutory context in which a decision is to be made and the nature of the decision itself must also be constantly borne in mind. Although a more certain standard of proof and more reliable or probative evidence (cf. TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83 at [82], (2014) 232 FCR 361 at 387 per Allsop CJ, Middleton and Foster JJ) may be required where a finding of fact is to be made, a more flexible approach may be appropriate where a decision-maker is called upon (as here) to form a view as to whether there is enough “evidence” to initiate an investigation and to defer (but not finally conclude) whether a visa should be cancelled but simply to reach for present purposes a state of “satisfaction” that a visa “may be” cancelled.

32    Confused and ill-expressed reasons may expose or conceal irrational or ill-thought out decision-making. But such is not the present case. Whatever difficulties may be exposed by the reasons provided in the present case, the statutory power under consideration is the power conferred by s 26(3) and that is a power which vests in the Minister to defer the opportunity to take a pledge of commitment “if the Minister is satisfied” (inter alia) that a “visa … may be cancelled…”. The reasons identify the very exercise of that power as to why the matter “was referred to … the Department … for investigation”. Although the precise “allegation” made against Mr Yang may be loosely expressed, it cannot be concluded that it was irrational to defer his taking a pledge of commitment whilst the investigation was undertaken.

33    Confused, ill-expressed or incomplete reasons do not necessarily equate with irrationality or legal unreasonableness. Different administrative decision-makers, or for that matter different Judges, are capable of making more precise findings of fact and may express more concise reasons than others. So long as reasons can be reasonably understood, irrationality or legal unreasonableness is not made out simply because reasons could have been better expressed.

34    Had it been necessary to resolve these grounds of review relied upon by Mr Yang, they would in all probability have been rejected. It could not be concluded that the decision was irrational, based upon no evidence or based upon irrelevant considerations. But if so, the very fact that to date there seems to have been ill-thought out reasoning only serves to highlight the importance of extending to Mr Yang the opportunity of being heard. It is his submissions which may well throw light on what appears to have been ill-disciplined thought on the part of the Department.

CONCLUSIONS

35    It has been concluded that the rules of procedural fairness apply to a decision taken under s 26(3) of the Australian Citizenship Act and that there has been a denial of procedural fairness on the facts. That decision should be quashed. Mr Yang is entitled to be afforded an opportunity to be heard before any determination is made pursuant to s 26(3).

36    Not pressed was an application initially made for an order that the Minister “take all reasonable steps to facilitate the making of the pledge of commitment”. Also not pressed was a further order initially sought “restraining the respondent from taking any steps to prevent [Mr Yang] from making the pledge of commitment…”. In the absence of such orders being sought, it is unnecessary to express any view as to whether such relief would have been granted.

37    Mr Yang has nevertheless been successful in securing relief. There is no reason why costs should not follow the event.

38    As the decisions made on 6 December 2019 have been rendered moot in so far as the remaining applicants are concerned, the balance of the present proceeding should be dismissed.

39    It was further submitted that if Mr Yang were to succeed on the basis of a denial of procedural fairness, it would also follow that the remaining Applicants would also be entitled to their costs. But no such order should be made. Too little is known as to found such an order. The fact that determinations affecting the remaining Applicants have been revoked is not of itself a sufficient reason to order costs.

40    In the absence of any determination made pursuant to s 26(3), Mr Yang will presumably now proceed to make his pledge of commitment free of delay.

THE COURT DECLARES THAT:

1.    The Fourth Applicant is entitled to make the pledge of commitment before any person specified in section 27(3) of the Australian Citizenship Act 2007 (Cth), wherever that person is located, and such persons are authorised to receive such a pledge of commitment from the Applicant.

AND THE COURT ORDERS THAT:

1.    The determination made on 6 December 2019 under s 26(3) of the Australian Citizenship Act 2007 (Cth) in respect to the Fourth Applicant is quashed.

2.    The proceeding is dismissed.

3.    The Respondent is to pay the costs of the Fourth Applicant, either as agreed or taxed.

Associate:    

Dated:    16 July 2020

SCHEDULE OF PARTIES