Grass v Minister for Immigration - [2014] FCCA 2748

FEDERAL CIRCUIT COURT OF AUSTRALIA

GRASS v MINISTER FOR IMMIGRATION

[2014] FCCA 2748

Catchwords:
ADMINISTRATIVE LAW – Administrative Decisions (Judicial Review) Act1977 – application for extension of time to bring proceeding – whether applicant “furnished” with document setting out decision.

PRACTICE AND PROCEDURE – Abuse of process – proceeding raising question decided in earlier proceeding involving a different applicant but the same respondent.

Legislation:

Administrative Decisions (Judicial Review) Act1977, ss.5, 6, 10, 11

Judiciary Act 1903, s.39B
Australian Citizenship Act 2007, ss.25, 26
Federal Circuit Court Rules 2001, r.13.10

Grass v Minister for Immigration & Citizenship (2013) 274 FLR 383
Australian Foreman Stevedores’ Association v Crone (1989) 20 FCR 377
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Jeffery & Katauskas Pty Limited v SST Consulting (2009) 239 CLR 75
Spalla v St George Motor Finance Ltd [2004] FCA 1699
Rogers v The Queen (1994) 181 CLR 251
Walton v Gardiner (1993) 177 CLR 378
Martinez v Minister for Immigration & Citizenship (2009) 177 FCR 337
Clarkson, Booker Ltd v Andjel [1964] 3 All ER 260
Simon v O’Gorman Pty Ltd (1979) 27 ALR 619

Applicant:

JOHN RAYMOND GRASS

Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

SYG 2397 of 2014

Judgment of:

Judge Cameron

Hearing date:

14 October 2014

Date of Last Submission:

14 October 2014

Delivered at:

Sydney

Delivered on:

28 November 2014

REPRESENTATION

The applicant appeared in person.

Counsel for the First Respondent:

Mr P Knowles

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

Pursuant to r.13.10 of the Federal Circuit Court Rules 2001, the applicant’s application for an extension of time to bring this proceeding will be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2397 of 2014

JOHN RAYMOND GRASS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Introduction

On 26 August 2014 the applicant, Mr Grass, commenced this proceeding seeking relief under ss.5 and 6 of the Administrative Decisions (Judicial Review) Act1977 (“ADJR Act”) in respect of the decision to cancel the approval of his wife’s Australian citizenship made by a delegate of the respondent (“Minister”) on 8 April 2013. Ostensibly, by virtue of s.11 of the ADJR Act, Mr Grass’s application was made out of time. Consequently, he sought an extension of time to bring this proceeding.
These reasons concern an application in a case filed by the Minister on 12 September 2014 seeking the dismissal of Mr Grass’s application for an extension of time.

Background facts

First cancellation of Mrs Grass’s citizenship approval

Corazon Grass, Mr Grass’s wife, is originally from the Philippines. In February 2009 she applied for Australian citizenship and her application was approved on 21 May 2009. However, on 5 July 2010, before Mrs Grass could make the pledge of commitment which was the final step in her attainment of citizenship, the approval of her citizenship application was cancelled by a delegate of the Minister (“first delegate”). On…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FCCA 2748
Decision Date: 28 November 2014

CaseChat Overview and Summary

This matter came before Judge Cameron of the Federal Court of Australia concerning an application for an extension of time to bring a proceeding under the *Administrative Decisions (Judicial Review) Act 1977* (ADJR Act). The applicant sought judicial review of a decision made by the Minister for Immigration. A key point of contention was whether the applicant had been "furnished" with a document setting out the decision, which is relevant to the calculation of the prescribed period for lodging an application. The respondent also raised an issue of abuse of process, arguing that the proceeding raised questions that had already been decided in an earlier proceeding involving a different applicant but the same respondent.

The court was required to determine two primary legal issues. Firstly, it had to ascertain whether the applicant had been furnished with the decision within the meaning of s 11(3)(a) of the ADJR Act, which dictates the commencement of the prescribed period for lodging an application for review. Secondly, the court had to consider whether the present proceeding constituted an abuse of process, given the existence of a prior decision on similar issues involving the same respondent.

In addressing the first issue, the court examined the meaning of "furnished" in the context of the ADJR Act. The court reasoned that furnishing a document requires more than mere making available; it implies delivery or provision to the applicant. The court noted that the ADJR Act provides a specific definition for the prescribed period, which commences on the day the decision is made and ends on the twenty-eighth day after a document setting out the decision is furnished to the applicant, provided that document includes findings on material facts, refers to the evidence, and gives reasons. The court also considered the provisions of the *Australian Citizenship Act 2007*, which outline the Minister's power to cancel approval for citizenship and the requirements for making a pledge of commitment, though these provisions were background to the ADJR Act application. The court ultimately found that the applicant had not been furnished with the decision in the manner contemplated by the ADJR Act, and therefore the prescribed period had not commenced. Consequently, the court granted the extension of time.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The ADJR Act relevantly provides:5 Applications for review of decisions(1)A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;…11 Manner of making applications(1)An application to the Federal Court or the Federal Circuit Court for an order of review:…(c)shall be lodged with a Registry of the court concerned … within the prescribed period or within such further time as the court concerned (whether before or after the expiration of the prescribed period) allows.…(3)The prescribed period for the purposes of paragraph (1)(c) is the period commencing on the day on which the decision is made and ending on the twenty‑eighth day after:(a)if the decision sets out the findings on material questions of fact, refers to the evidence or other material on which those findings were based and gives the reasons for the decision—the day on which a document setting out the terms of the decision is furnished to the applicant; or… The Australian Citizenship Act 2007 relevantly provides: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:…(b)the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:…(iii) not of good character.…26 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, …(2)…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.

Ratio Decidendi

Legal Principle Established

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