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…

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: [2013] FMCA 74
Decision Date: 13 February 2013

CaseChat Overview and Summary

The applicant, Grass, sought judicial review of a decision by the respondent, the Minister for Immigration, to cancel the approval of his Australian citizenship application. The primary legal issue before the court was whether an administrative decision that has been set aside for a breach of natural justice is void ab initio, and if so, when an order pursuant to the Administrative Decisions (Judicial Review) Act 1977 setting aside an administrative decision can take effect. The court had to determine whether the decision to cancel the approval of the applicant's Australian citizenship application was void from its inception and, if so, the effective date of the setting aside of the decision.

The court found that the decision to cancel the approval of the applicant's Australian citizenship application was indeed void ab initio due to a breach of natural justice. It was held that such a decision is void from the moment it is made and not from the date it is set aside. The court emphasised that the setting aside of the decision does not render the decision void from its inception but rather from the date the setting aside order takes effect. Consequently, the court ordered that the decision to cancel the approval of the applicant's Australian citizenship application be set aside with effect from 8 April 2013.

The court also considered the appropriate respondent in the proceeding and extended the time for bringing the proceeding to 2 November 2012. The court substituted the Minister for Immigration and Citizenship for the Department of Immigration and Citizenship as the respondent in the proceeding.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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