Grass v Minister for Immigration - [2013] FMCA 74

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GRASS v MINISTER FOR IMMIGRATION

[2013] FMCA 74

ADMINISTRATIVE LAW – Whether administrative decision set aside under Administrative Decisions (Judicial Review) Act1977 for breach of the rules of natural justice is void ab initio – when order pursuant to Administrative Decisions (Judicial Review) Act1977 setting aside an administrative decision can take effect.

Administrative Decisions (Judicial Review) Act1977, ss.5, 11, 16
Australian Citizenship Act 2007, s.26

Wattmaster Alco Pty Ltd v Button (1986) 13 FCR 253
Applicants A1 & A2 v Brouwer (2007) 16 VR 612
R v Greater London Council; Ex parte Blackburn [1976] 1 WLR 550
Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Jadwan Pty Ltd v Secretary, Department of Health & Aged Care (2003) 145 FCR 1

Applicant:

CORAZON ELAURIA GRASS

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number:

SYG 2514 of 2012

Judgment of:

Cameron FM

Hearing date:

6 February 2013

Date of Last Submission:

6 February 2013

Delivered at:

Sydney

Delivered on:

13 February 2013

REPRESENTATION

Counsel for the Applicant:

Ms F. Ramsay

Solicitors for the Applicant:

Bradley Allen Love

Counsel for the Respondent:

Mr P. Knowles

Solicitors for the Respondent:

DLA Piper Australia

ORDERS

The Minister for Immigration and Citizenship be substituted for the Department of Immigration and Citizenship as respondent in this proceeding.
The time for bringing this proceeding be extended to 2 November 2012.
Pursuant to s.16(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), the respondent’s decision dated 5 July 2010 to cancel the approval of the applicant’s Australian citizenship application be set aside with effect from 8 April 2013.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2514 of 2012

CORAZON ELAURIA GRASS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

Introduction

On 2 November 2012 the applicant commenced this proceeding. She seeks relief under the Administrative Decisions (Judicial Review) Act1977 (“ADJR Act”) in respect of a decision to cancel the approval of her application for Australian citizenship which was taken by a delegate of the Minister for Immigration and Citizenship (“Minister”) on 5 July 2010.
It appears that the applicant’s application for Australian citizenship was approved on 21 May 2009 but that, before she could make the pledge of commitment which was the final step in her attainment of citizenship, the Department of Immigration and Citizenship (“Department”) became aware of matters which it believed might disentitle her to be granted citizenship. As a consequence, it appears that an informal and improper delay on the applicant being allowed to make the pledge of commitment was surreptitiously put in place by the Department which presumably allowed it time sufficient to investigate the matters which concerned it and then on 5 July 2010 to cancel the approval of the citizenship application.

Substitution of respondent

The proceedings, as commenced, joined the Department as respondent. The Minister filed an application in a case dated 16 November 2012 which, amongst other things, sought an order that he be substituted for the Department because the relevant decision was made by a ministerial delegate. That appears to be an appropriate course and the applicant has indicated no opposition. Indeed, since the Minister’s application in a case was filed, both parties have treated the substitution as a fait accompli, if the headings on the documents they have filed are any guide. Consequently, there will be an order that the Minister be substituted as respondent in this proceeding, in place of the Department.

Extension of time

As noted earlier, the decision to cancel the approval of the applicant’s Australian citizenship application was taken on 5 July 2010. This proceeding was not commenced until 2 November 2012 which has the consequence, by virtue of s.11 of the ADJR Act, that it is out of time. The applicant has sought an extension of time to bring the proceeding and the Minister does not oppose that application.
Having considered the contents of the applicant’s affidavit sworn on 4 February 2013, I am satisfied that she has provided a reasonable explanation for the delay in commencing the proceeding.
The Minister’s application in a case also sought summary dismissal of the proceeding on the basis that it had no reasonable prospects of success. However, since then the Minister has conceded that the decision to cancel the applicant’s approval for citizenship should be set aside pursuant to s.5(1)(a) of the ADJR Act on the basis that a breach of the rules of natural justice occurred in connection with it.
Having considered the circumstances in which the delegate’s decision was made I am satisfied that it is appropriate to make an order setting it aside.
Consequently, it is appropriate that there be an order that the time for the making of the application be extended to 2 November 2012.

When should relief take effect?

Issue

Although the parties are agreed that the cancellation should be set aside, they differ as to the date when such an order should take effect. Section 16 of the ADJR Act relevantly 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; …
The Minister submitted that the cancellation should be set aside with effect from 8 April 2013 and the applicant submitted that the cancellation should take effect on the pronouncement of the Court’s order. For the reasons which follow I have concluded that the cancellation of the approval should be set aside with effect from 8 April 2013.

Consideration

The terms of s.16(1)(a) raise no presumption as to the appropriate date from which a reviewable administrative decision should be set aside. In Wattmaster Alco Pty Ltd v Button (1986) 13 FCR 253, Sheppard and Wilcox JJ said, Fox J agreeing:
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. (at 256-257)
It is also apparent that orders granting common law relief in the nature of certiorari and mandamus may be suspended or delayed in their operation where circumstances merit it: Applicants A1 & A2 v Brouwer (2007) 16 VR 612 at 635 [95]; R v Greater London Council; Ex parte Blackburn [1976] 1 WLR 550 at 559-560, 564, 567.
The Minister submitted that he wished to reconsider the cancellation and needed time to do that and to afford the applicant natural justice. The applicant’s submissions were to the effect that her citizenship had been delayed long enough and she was entitled to take the pledge of commitment and complete the process of gaining Australian citizenship.
As the Minister pointed out in his submissions, if the decision was set aside upon the pronouncement of the Court’s order the approval of the applicant’s citizenship application would reassume its validity, although subject to the Ministerial power to cancel that approval, with the result there would potentially be a race by the parties to pledge commitment and to cancel the approval. In this connection, if the applicant makes the pledge before the Minister reconsiders her application for citizenship, she will have become a citizen and could only lose that status in circumstances which are much more limited than those which permit the Minister to cancel the approval of an application for it.
In support of her submission that the cancellation should be set aside with immediate effect the applicant argued that the nature of a finding that an administrative decision is affected by jurisdictional error, which she submitted was the case here, was that the decision was taken never to have been made and that any order which the Court might make should not have the effect of extending the purported life of a void decision. In this regard, the applicant referred to Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 and Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. However, the applicant seeks relief under the ADJR Act based on a breach of the rules of natural justice, not constitutional writs for jurisdictional error. Consequently, the relief which is available to the applicant in the present matter is prescribed and circumscribed by the ADJR Act and, specifically, by s.16(1)(a) of that Act. The terms of that provision admit of the circumstance:
… 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: Wattmaster at 256 per Sheppard and Wilcox JJ, Fox J agreeing.
Further, as was observed in Jadwan Pty Ltd v Secretary, Department of Health & Aged Care (2003) 145 FCR 1, the grounds for the relief specified in s.5 of the ADJR Act are not expressed in terms of jurisdictional error. It was said:
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. (per Gray and Downes JJ at 17 [44])
For these reasons, I do not accept the applicant’s submissions that the cancellation should be treated as a nullity at any time other than the one which the Court considers to be the most appropriate in the circumstances.
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.
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.
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.
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.
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.
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.
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

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.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Cameron FM

Date: 13 February 2013