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 |
| 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…
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- Case
- [2013] FMCA 74
- Decision Date
CaseChat Overview and Summary
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
1.
The Minister for Immigration and Citizenship be substituted for the Department of Immigration and Citizenship as respondent in this proceeding.
2.
The time for bringing this proceeding be extended to 2 November 2012.
3.
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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