Grass v Minister for Immigration and Border Protection

Case [2015] FCAFC 44

FEDERAL COURT OF AUSTRALIA

Grass v Minister for Immigration and Border Protection [2015] FCAFC 44

Citation: Grass v Minister for Immigration and Border Protection [2015] FCAFC 44
Appeal from: Grass v Minister for Immigration and Border Protection [2014] FCA 393
Parties: CORAZON ELAURIA GRASS v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and FEDERAL MAGISTRATE ROBERT CAMERON
File number: NSD 473 of 2014
Judges: PERRAM, YATES AND MORTIMER JJ
Date of judgment: 27 March 2015
Catchwords: ADMINISTRATIVE LAW – appeal from decision of Federal Court of Australia dismissing appeal from Federal Magistrates Court – lawfulness of cancellation of citizenship approval – cancellation power under s 25(1) of Australian Citizenship Act 2007 (Cth) not constrained by s 26(3) power to delay the making of pledge of commitment – appeal dismissed
Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) s 16(1)(a)
Australian Citizenship Act 2007 (Cth) ss 21, 22, 24, 25(1), 25(2), 25(3), 26(1), 26(3), 26(4), 34
Cases cited:

Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1
Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1; [2003] FCAFC 288
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50
Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32 (Malaysian Declaration Case)
R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529 (Wool Stores Case)

Wattmaster Alco Pty Ltd v Button (1986) 13 FCR 253

Date of hearing: 10 November 2014
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 79
Counsel for the Appellant: Ms K Rubenstein with Mr L Karp
Counsel for the First Respondent:

Mr P Knowles
Solicitor for the First Respondent:

DLA Piper

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 473 of 2014
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

CORAZON ELAURIA GRASS
Appellant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

FEDERAL MAGISTRATE ROBERT CAMERON
Second Respondent

JUDGES:

PERRAM, YATES AND MORTIMER JJ

DATE OF ORDER:

27 MARCH 2015

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant file and serve written submissions on costs not exceeding 5 pages on or before 4.00pm 3 April 2015.

3.The respondents file and serve written submissions in response on costs not exceeding 5 pages on or before 4.00pm 10 April 2015.

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


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 473 of 2014
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

CORAZON ELAURIA GRASS
Appellant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

FEDERAL MAGISTRATE ROBERT CAMERON
Second Respondent

JUDGES:

PERRAM, YATES AND MORTIMER JJ

DATE:

27 MARCH 2015

PLACE:

SYDNEY

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION AND SUMMARY

  1. This appeal concerns the lawfulness of the…

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Grass v Minister for Immigration and Border Protection [2015] FCAFC 44
Case
[2015] FCAFC 44
Decision Date

CaseChat Overview and Summary

The case of Grass v Minister for Immigration and Border Protection involved the appellant, a citizen of the Philippines, who had applied for Australian citizenship and had her application approved on 21 May 2009. The only remaining step for her to become a citizen was to take the pledge of commitment, which could be done at any time and did not need to occur at a particular ceremony. However, the administrative practice of the Department of Immigration and Border Protection and the Department of Immigration and Citizenship was to arrange for "citizenship ceremonies" to be held around the country, and for those with approvals to take the pledge at such ceremonies. The appellant believed she had to wait for such a ceremony and did not receive notification about the date for her citizenship ceremony. The Department's records showed that the appellant was listed to take the pledge at a ceremony on 1 July 2009, although she was never notified of this, and the citizenship conferral was placed on hold on 29 May 2009. The appellant was not notified of this hold. The appellant's citizenship approval was ultimately cancelled on the basis that she had not taken the pledge of commitment within a reasonable time of her approval, and the Minister had decided that she was not of good character.

The legal issues before the court were whether the power to cancel a citizenship approval under s 25(1) of the Australian Citizenship Act 2007 (Cth) was constrained by the power to delay the making of a pledge of commitment under s 26(3), and whether the court had the power to revoke, vary, or suspend the operation of any order made under s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The court held that the power to cancel a citizenship approval under s 25(1) was not constrained by the power to delay the making of a pledge of commitment under s 26(3), and that the court did not have the power to revoke, vary, or suspend the operation of any order made under s 16 of the AD(JR) Act.

The court's reasoning was that the narrowness and nature of the restrictions on the circumstances in which a person might lose their citizenship did not say anything about the scope and operation of the cancellation provisions in s 25. The structure of Div 2 of the Act provided several stages at which a person may be denied citizenship, including the eligibility criteria in ss 21 and 22, the discretionary power to refuse approval under s 24(2), and proceedings for an offence against Australian law under s 24(6)(a). The court found that the appellant's citizenship approval was lawfully cancelled because she had not taken the pledge of commitment within a reasonable time of her approval, and the Minister had decided that she was not of good character.

The final orders of the court were that the appeal was dismissed, and the appellant was required to file and serve written submissions on costs not exceeding 5 pages on or before 4.00pm 3 April 2015, and the respondents were required to file and serve written submissions in response on costs not exceeding 5 pages on or before 4.00pm 10 April 2015.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant file and serve written submissions on costs not exceeding 5 pages on or before 4.00pm 3 April 2015.

3. The respondents file and serve written submissions in response on costs not exceeding 5 pages on or before 4.00pm 10 April 2015.

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

Background

Background to the litigation

Section 16(4) should also be noted:(4)The Federal Court or the Federal Circuit Court may at any time, of its own motion or on the application of any party, revoke, vary, or suspend the operation of, any order made by it under this section.BACKGROUND FACTS The appellant is a citizen of the Philippines and currently holds a permanent spouse visa to enter and reside in Australia. She has held that visa since 2008. Some six years ago, she applied to become an Australian citizen. Her husband, Mr Grass, is an Australian citizen. The appellant’s citizenship application was approved on 21 May 2009. As will appear from the Act, and the Regulations, once an applicant has an approval of her citizenship, the only remaining step is to take the pledge of commitment before a person authorised to take that pledge. This can be done at any time, and need not occur at any particular kind of function or ceremony. Despite this, the administrative practice of the Department of Immigration and Border Protection and of the Department of Immigration and Citizenship (as it then was) is to arrange for “citizenship ceremonies” to be held in various locations around the country, and for persons with approvals to take the pledge at such ceremonies. It is the existence of this practice, together with the fact that the appellant believed she had to wait for such a ceremony, which led to the unfortunate sequence of events underlying this appeal. The evidence on the appeal shows that the appellant understood there was generally a three month delay between citizenship approval and her ability to take the pledge in accordance with s 26 of the Act. She, and her husband, made a number of enquiries of the Department of Immigration and Citizenship (as it then was) (the Department), but received no notification about the date for her citizenship ceremony. Departmental records showed that the appellant was listed to take the pledge at a ceremony on 1 July 2009, although she was never notified of this. An internal departmental instruction to place the citizenship conferral on hold was in evidence on the appeal, with the date of occurrence recorded as 29 May 2009. Not having been notified of the citizenship ceremony listing, the appellant was of course not notified when it was put on hold. The extent of the deception intended to be practised by officers within the Department is revealed by the following (undated) entry:Client called MCC regarding ceremony as has been waiting over 6 months since approval. Megan Slattery contacted by MCC TL Catherine Brown - have been advised client ceremony still on hold pending investigation. Client NOT to be advised of investigation or that ceremony on hold. Please speak to Megan Slattery if there are further questions. Client advised that there is currently a big waiting list for ceremony, and they will be contacted in due course. The deception continued. The next (undated) entry in the departmental records states:Hi MeganI contacted the client’s husband Mr John Grass in response to the email recd and gave him the same information I told the client yesterday that at this stage Ryde Council have not provided any ceremony dates for next year. He was quite persistent about knowing approximately when her ceremony would be as he had found out from the council that they hold ceremonies every month for 100 clients and he was sure his wife would be somewhere on the top of the list. I advised him that there were still clients who were approved about the same time as his wife waiting for a ceremony. Without advising him about the pending investigation, I said that the clients who were approved about May would be invited about Feb or March. I also advised him that 100 clients per ceremony did not mean the first 100 on the list. Some families had many children included in their application and the more number of children the number of main applicants would diminish. He said we should do something about clients waiting for citizenship so long. His wife was depending on her citizenship as she had travel plans. He then thanked me for responding to his enquiry.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It is apparent that the circumstances in which the Minister is empowered to revoke citizenship are much more confined than those in which the Minister is, first, able to refuse approval and, second, able to cancel an approval.Administrative Decisions (Judicial Review) Act 1977 (Cth) The second piece of legislation in issue on the appeal is the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the AD(JR) Act). The provision in issue is s 16(1), which provides:16 Powers of the Federal Court and the Federal Circuit 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 Circuit 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;(b)an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the court thinks fit;(c)an order declaring the rights of the parties in respect of any matter to which the decision relates;(d)an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties. Section 16(4) should also be noted:(4)The Federal Court or the Federal Circuit Court may at any time, of its own motion or on the application of any party, revoke, vary, or suspend the operation of, any order made by it under this section.BACKGROUND FACTS The appellant is a citizen of the Philippines and currently holds a permanent spouse visa to enter and reside in Australia. She has held that visa since 2008. Some six years ago, she applied to become an Australian citizen. Her husband, Mr Grass, is an Australian citizen. The appellant’s citizenship application was approved on 21 May 2009. As will appear from the Act, and the Regulations, once an applicant has an approval of her citizenship, the only remaining step is to take the pledge of commitment before a person authorised to take that pledge. This can be done at any time, and need not occur at any particular kind of function or ceremony. Despite this, the administrative practice of the Department of Immigration and Border Protection and of the Department of Immigration and Citizenship (as it then was) is to arrange for “citizenship ceremonies” to be held in various locations around the country, and for persons with approvals to take the pledge at such ceremonies. It is the existence of this practice, together with the fact that the appellant believed she had to wait for such a ceremony, which led to the unfortunate sequence of events underlying this appeal. The evidence on the appeal shows that the appellant understood there was generally a three month delay between citizenship approval and her ability to take the pledge in accordance with s 26 of the Act. She, and her husband, made a number of enquiries of the Department of Immigration and Citizenship (as it then was) (the Department), but received no notification about the date for her citizenship ceremony.

Ratio Decidendi

Legal Principle Established

As the appellant submitted, under the predecessor Australian Citizenship Act 1948 (Cth), there was no requirement for the Minister to make a decision, such that citizenship applications might be left undecided without any capacity for applicants to require the Minister to make a decision. In contrast, s 24 now imposes a duty on the Minister to either grant or refuse a citizenship approval. Whether or not this is appropriately described as “protective” of applicants, like s 65 of the Migration Act 1958 (Cth) (the Migration Act), it does make the matters set out in s 24(1A), (3), (4), (4A), (5), (6) and (7) preconditions going to the jurisdiction of the Minister to grant or refuse approval. It is also clear, as the appellant submitted, that Parliament intended to give the Minister a power to cancel an approval which can be exercised in a broader range of circumstances than the power to revoke a person’s citizenship under s 34. Given the otherwise enduring nature of citizenship, and the status and benefits it confers on an individual, it is hardly surprising that Parliament saw fit to place considerable restrictions around the circumstances in which a person might lose her or his citizenship once granted. The narrowness and nature of those restrictions do not, in our opinion, say anything about the scope and operation of the cancellation provisions in s 25. The structure of Div 2 is such that it provides several stages at which a person may be denied citizenship. First, there are the eligibility criteria in ss 21 and 22. These are complex, and within these criteria exist discretionary powers for the criteria to be waived or modified: see, for example, s 22(4A), (5) and (5A). Section 21 provides for several categories of applicants who need only meet modified eligibility criteria because of disabilities: see s 21(3) and (4). Persons born in Papua are also given separate criteria (s 21(7)). In each of these cases, one of the matters about which the Minister must be satisfied before a person is eligible is that the person “is of good character at the time of the Minister’s decision on the application”. Second, by reason of s 24(2), the Minister may refuse to approve a person who meets the eligibility criteria, including the good character requirement. This discretion is not expressly conditioned by any considerations. It is illustrative of the highly discretionary and staged nature of the process. An otherwise eligible person, and a person to whom the Minister has decided (as a matter of discretion) not to refuse approval under s 24(2), may nevertheless be precluded from gaining approval because she or he becomes subject to proceedings for an offence against Australian law: see s 24(6)(a). This subsection will apply even if a person was not subject to any such proceedings at the time of application, or at the time she or he was assessed as eligible for approval. Nevertheless, new and intervening proceedings against that person will put a halt – at least during the currency of those proceedings and until their final determination – to that person securing an approval from the Minister. Provisions such as this illustrate the scheme is intended to operate in a fluid way, changing a person’s access to an approval, adversely to that person, as events occur which Parliament has either identified expressly as impacting on whether a person should be able to become a citizen, or Parliament has left to the repository of the power to decide whether those changed events should have such an impact.