Karda, Pauline v Minister for Immigration & Ethnic Affairs

[1995] FCA 1132

FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES REGISTRY      )    No NG 782 of 1995
GENERAL DIVISION             )

BETWEEN:

PAULINE KARDA
  Applicant

AND:

MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS

Respondent

Sackville J.
Sydney
8 December 1995

REASONS FOR JUDGMENT

In this matter, the applicant has applied for an order for review in relation to what is said to be the failure of the respondent, ("the Minister"), to make a decision. The application is brought pursuant to s.7 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The grounds of the application are that there has been an unreasonable delay in making the decision, in that the respondent has an obligation to make a decision on the applicant's application for Australian citizenship and that there has been a failure to make a decision on that application.

It appears to be agreed that the applicant first applied for citizenship on 5 October 1993.  These proceedings were instituted by filing of the application on 16 October 1995,
that is, some two years after the making of the application for citizenship.  I was informed that the applicant's permanent residency was removed by an order made on 24 November 1995, that is, after the institution of these proceedings.  On 6 December 1995 the Minister finally rejected the citizenship application.  The only question that remains is that of costs.

The applicant seeks her costs on the basis that, although the decision has removed the subject matter of the proceedings, the delay was such that she should receive the costs of instituting and maintaining the proceedings.  Ms English, on behalf of the respondent, disputes the application made on behalf of the applicant.  Both parties referred me to an annexure to the affidavit of Ms Hall, sworn 6 December 1995, setting out the course of events in this matter.

Insofar as relevant, that course of events was as follows.  After the application was lodged in October 1993, the applicant's file was referred to Compliance Parramatta from Compliance Rockdale. On 15 November 1993 the applicant was placed on Migrant Alert List.  On 19 April 1994 the applicant was interviewed.  On 6 July 1994 an Administrative Moratorium came into effect in relation to a certain category of cases of which this was apparently one.  The object of the moratorium, so Ms English informed me, was to allow applicants to obtain the benefit of more favourable legislation or regulations that were shortly to come into force.

On 5 November 1994 the case was referred to the Legal Opinions Section. It was returned from that section on 17 February 1995. On 17 March 1995 notice of intention to cancel under s.109 of the Migration Act 1958 (Cth) was given to Ms Karda. On 29 March 1995 Ms Karda responded to that notice. Further investigations commenced thereafter.

This chronology seems to me to raise two significant matters that have not, I think, been satisfactorily answered by the Minister.  The first is why there was a delay between 21 October 1993, when the file was referred to Compliance Parramatta, and 19 April 1994, when Ms Karda was interviewed.  The second is why there was a delay from the date of the Administrative Moratorium until the matter was referred to the Legal Opinions Section.  It is not clear to me why the Administrative Moratorium should lead to the suspension of inquiries designed to ascertain the underlying facts to which legislation regulations would need to be applied.  Indeed, there appears to be no explanation for the delay between 19 April 1994, when Ms Karda was interviewed, and the Administrative Moratorium, which came into effect on 6 July 1994. 

Mr Levingston has referred me to s.14 of the Australian Citizenship Act 1948 (Cth). That section provides that the Minister shall not defer consideration of an application made under section 13 for a period that exceeds or periods that exceed in the aggregate 12 months. Ms English has contended
that an application is not deferred where it is under active consideration.

On the basis of the material available to me I do not think it can fairly be said that from October 1993 to November 1994 the matter was under active consideration. Whether or not there was a breach of s.14 of the Australian Citizenship Act 1948, it seems to me that the delay before the institution of proceedings was such that the applicant had a legitimate cause of complaint and was justified in instituting the proceedings. In those circumstances, it appears to me to be appropriate that the respondent should pay the applicant's costs of the these proceedings and I so order. By consent, the application is dismissed.

I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.

Associate:

Dated:14 December, 1995

Heard:8 December, 1995

Place:             Sydney

Decision:8 December, 1995

Appearances:       Mr C. Levingston of Corby Levingston, Solicitors, appeared for the applicant.

Ms K. English of the Office of the Australian Government Solicitor, appeared for the respondent.