Huang Ziao Hong v Minister for Immigration & Ethnic Affairs

[1995] FCA 1158

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
NEW SOUTH WALES DISTRICT REGISTRY  )     No NG 739 of 1995
  )
GENERAL DIVISION                  )

BETWEEN:HUANG ZIAO HONG

Applicant

AND:MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

CORAM:    HILL J
PLACE:    SYDNEY
DATED:    10 NOVEMBER 1995

REASONS FOR JUDGMENT

In excess of twenty months ago the applicant in these proceedings applied for Australian Citizenship. As at the date the present proceedings were commenced that application had not been dealt with. Pursuant to s14A of the Australian Citizenship Act 1948 (Cth) the Minister is entitled to defer consideration of the application for a period or periods not exceeding twelve months in total. Even if it be assumed that there was then allowed some short time thereafter for consideration, it is evident that by the time the present proceedings were commenced the Minister was substantially in default of the obligation imposed upon him to give consideration to the application for citizenship within a twelve month period or shortly thereafter.

The day before the present proceedings were brought the Minister wrote to the applicant advising that consideration was being given to cancelling the visa which she

had obtained by operation of regs6 and 16 of the Migration Reform (Transitional Provisions) Regulations 1994 (Cth).  The letter alleged that the applicant had completed a declaration for grant of resident status which included false and misleading statements in a material particular concerning her relationship with her spouse, Mr Gonzalez.  The consequence of cancellation of a visa would clearly be that, subject to a legal argument which I shall mention in a moment, the application for citizenship would then fail.

The legal argument is that because s14A of the Citizenship Act imposes upon the Minister an obligation not to defer consideration of the application longer than twelve months, at the expiration of that twelve month period automatically the applicant becomes an Australian Citizen.  That is not an argument I am called upon to decide here, although it is far from clear to me how that result follows from the wording of the section.

The Minister subsequently revoked the applicant's visa on 6 November.  In consequence the applicant is no longer a permanent resident and is unable to meet the requirements of s13(1)(a).  In the result, on 6 November 1995 the Minister wrote to the applicant refusing her application for citizenship.

The present application to the Court was brought on the basis of a failure on the part of the Minister to make a decision as at the time it was brought.  Clearly there has been an inordinate delay on the part of the Minister and no attempt has been made to justify the delay.  The only matter that is pointed to is that the process of decision-making was inexorably proceeding to its conclusion as evidenced by the letter received on the day before the application was filed.  There is some substance in the submissions for the Minister in that a perusal of the correspondence would certainly have suggested that it was quite likely that a decision would be reached within a relatively short period of time.  That, of course, is to say unless the matter again fell into a dark hole not to emerge for another twenty-two months.

In the circumstances it is clear that, as at the date the application was brought there had been an unreasonable delay and had the matter been heard as at that date the Court would most likely have made an order requiring a decision to be made within a short time.  Whether the decision would, in fact, have been made without the intervention of the Court proceedings is, of course, a matter of speculation.

In all the circumstances I think it is appropriate that the applicant's costs be borne by the Minister and
accordingly I would order that the application be dismissed but that the respondent pay the applicant's costs of it.

I certify that this and the
preceding three (3) pages
are a true copy of the Reasons
for Judgment herein of his Honour
Justice Hill.

Associate:

Date:  20 December 1995

Solicitors for Applicant:    Corby Levingston

Solicitors for Respondent:   Australian Government Solicitor

Date of Hearing:            10 November 1995

Date Judgment Delivered:         10 November 1995