Vincent Tze Ching Leung v Minister for Immigration & Multicultural Affairs
[1997] FCA 331
•2 MAY 1997
CATCHWORDS
IMMIGRATION LAW - citizenship - decision of Minister to grant certificates of Australian citizenship - subsequent investigation by officers of DIEA into allegations of misleading statements contained in applications for citizenship - Minister’s decision to grant certificate revoked - whether the Minister had power to re-exercise his discretion to revoke decision to grant certificate - whether s33(3) Acts Interpretation Act empowered the Minister to revoke certificate
Acts Interpretation Act 1901 s 33(3)
Administrative Appeals Tribunal Act 1975 s 44
Australian Citizenship Act 1948 ss 13, 15, 17, 18, 19, 21, 50
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Barton v Croner Trading Pty Ltd (1984) 3 FCR 95
Comptroller-General of Customs v Kawasaki Motors Pty Ltd (1991) 32 FCR 219
Export Development Grants Board v EMI (Australia) Ltd (1985) 61 ALR 115.
Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93
Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales) (1978) 1 ALD 167
Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 28 ALD 480
Smith-Davidson v Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 871
VINCENT TZE CHING LEUNG and ANNA CHUI MEI WONG
v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
No.VG 516 of 1996
Marshall J
Melbourne
2 May 1997
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY )
GENERAL DIVISION )
No. VG 516 of 1996
BETWEEN: VINCENT TZE CHING LEUNG
and ANNA CHUI MEI WONG
Applicants
AND: MINISTER FOR IMMIGRATION
AND MULTICULTURAL AFFAIRS
Respondent
CORAM: Marshall J
PLACE: Melbourne
DATE: 2 May 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The applicants pay the respondent’s costs of the appeal.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY )
GENERAL DIVISION )
No. VG 516 of 1996
BETWEEN: VINCENT TZE CHING LEUNG
and ANNA CHUI MEI WONG
Applicants
AND: MINISTER FOR IMMIGRATION
AND MULTICULTURAL AFFAIRS
Respondent
CORAM: Marshall J
PLACE: Melbourne
DATE: 2 May 1997
REASONS FOR JUDGMENT
This is an appeal by Dr Vincent Tze Ching Leung and Ms Anna Chui Mei Wong (“the applicants”) from a decision of the Administrative Appeals Tribunal (“AAT”) in which the AAT affirmed a decision of a delegate of the then Minister for Immigration and Ethnic Affairs (“the Minister”) to revoke a decision to grant Australian citizenship to Dr Leung and Ms Wong.
BACKGROUND FACTS
The applicants are husband and wife and are citizens of Hong Kong. They hold Australian permanent residency visas, having first entered Australia on 21 July 1991. On 18 August 1994 they applied for Australian citizenship. Their applications were approved on 30 August 1994. On 15 September 1994 the Minister wrote to the applicants informing them that their applications had been approved.Certificates of Australian citizenship were issued in the name of each applicants.
On 4 October 1994 the Minister’s Department (“the Department”) received an anonymous letter which led officers of the Department to investigate allegations made in it regarding Dr Leung. Those allegations raised matters concerning the exercise of the Minister’s discretion to grant a certificate of Australian citizenship.As a result of the ensuing investigation a delegate of the Minister wrote to the applicants on 2 February 1995 informing them of his decision to revoke the decision to approve their applications for citizenship. The letter stated that the applicants did not meet the requirements of ss 13(4)(b)(i) and 13(1) (d) and (e) of the Australian Citizenship Act (“the Citizenship Act”). As discussed later in these reasons, section 13(4)(b)(i) of the Citizenship Act permits the Minister to take into account, in determining whether an applicant for citizenship has met the residential requirements in s 13 (1)(d) and (e) of the Citizenship Act, periods spent outside Australia by an applicant if that person was engaged in activities that the Minister considered beneficial to the interests of Australia.
The applicants applied to the AAT on 6 March 1995 for a review of the decision of the Minister’s delegate. By its decision dated 26 July 1996, the AAT, constituted by McDonald D.P., affirmed the decision under review. On 21 August 1996 the applicants appealed to the Court pursuant to s44 Administrative Appeals Tribunal Act 1975 (“the AAT Act”) from the decision of the AAT. Section 44 of the AAT Act permits appeals to the Court from decisions of the AAT on questions of law. The appeal was heard by the Court on 16 April 1997.
THE LEGISLATIVE CONTEXT
The Minister (now known as the Minister for Immigration and Multicultural Affairs), is able to grant a certificate of Australian citizenship to a person in accordance with the provisions of Division 2 of the Australian Citizenship Act 1948.
Section 13 of the Citizenship Act provides, in so far as is presently material:-
“13. (1) Subject to this section, the Minister may, in the Minister’s discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:
(a)the person is a permanent resident;
(b)the person has attained the age of 18 years;
(c)the person understands the nature of the application;
(d)the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one year during the period of 2 years immediately preceding the date of the furnishing of the application;
(e)the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than 2 years during the period of 5 years immediately preceding the date of the furnishing of the application;
(f)the person is of good character;
(g)the person possesses a basic knowledge of the English language;
(h)the person has an adequate knowledge of the responsibilities and privileges of Australian citizenship; and
(i)if granted a certificate of Australian citizenship, the person is likely to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia.
(`1A)...
(2)...
(3)...
(4) For the purposes of the application of subsection (1) in relation to an applicant for the grant of a certificate of Australian citizenship:
(a)the Minister shall not take into account, as a period during which the applicant has been present in Australia as a permanent resident, any period during which the applicant has been confined in a prison or has been confined in a psychiatric institution by order of a court made in connection with criminal proceedings against the person; and
(b)subject to paragraph (a), the Minister may, in the Minister’s discretion:
(i)treat a period during which the applicant:
(A)was a permanent resident;
(B) was not present in Australia; and
(C)was engaged in activities that the Minister considers beneficial to the interests of Australia;
as a period during which the applicant was present in Australia as a permanent resident;”
Section 15 of the Citizenship Act provides inter alia that a person to whom a certificate of Australian citizenship has been granted shall be an Australian citizen after the making of a pledge of commitment to Australia. Under s15 a person may also become an Australian citizen by first making a pledge of commitment and subsequently being granted a certificate of citizenship. However, it is the usual practice for the certificate to be granted first and the pledge to be made subsequently.
Division 4 of the Citizenship Act deals with “loss of citizenship”. Citizenship may be lost by an Australian citizen acquiring the nationality or citizenship of a foreign country (s 17), by renouncing Australian citizenship (s 18), or by serving in the armed forces of an enemy country (s 19). Section 21 of the Citizenship Act deals with deprivation of citizenship. Section 21(1) provides that:-
“21. (1) Where:
(a)a person who is an Australian citizen by virtue of a certificate of Australian citizenship:
(i)has been convicted of an offence against section 50 in relation to the application for the certificate of Australian citizenship; or
(ii)has, at any time after furnishing the application for the certificate of Australian citizenship (including a time after the grant of the certificate), been convicted of an offence against a law in force in a foreign country or against a law of the Commonwealth, a State or Territory for which the person has been sentenced to death or to imprisonment for life or for a period of not less than 12 months, being an offence committed at any time before the grant of the certificate (including a time before the furnishing of the application); and
(b)the Minister is satisfied that it would be contrary to the public interest for the person to continue to be an Australian citizen;
the Minister may, in the Minister’s discretion, by order, deprive the person of his Australian citizenship, and the person shall, upon the making of the order, cease to be an Australian citizen.”
Section 50 of the Citizenship Act provides that:
“50. (1) A person shall not, for a purpose of or in relation to this Act:
(a)make, or cause or permit to be made, a representation or statement that is, to the knowledge of the person, false or misleading in a material particular; or
(b)conceal, or cause or permit to be concealed, a material circumstance.
Penalty:$1,000 or imprisonment for 6 months, or both.
(2) A prosecution for an offence against subsection (1) may be commenced at any time within 10 years after the commission of the offence.”
THE POINTS OF LAW RAISED BY THE APPEAL
Did the Minister have the power to revoke the decision to grant a certificate of citizenship to each applicant?
It was submitted by the solicitor for the applicants, Mr P Woodhouse, that the Minister was not able to revoke a decision to grant a certificate of citizenship. He submitted that the power to grant a certificate of citizenship under s13(1) of the Citizenship Act is exhausted by its exercise. He contended that once a decision has been made to grant a certificate of citizenship, the Minister is “functus officio” and not able to make another subsequent decision revoking the decision to grant the certificate. He contended that as a certificate of citizenship has no time limit upon it, the exercise of the discretion to grant the certificate is a power that Parliament would not have intended to be exercised from time to time but once only. The provisions of Division 4 of the Citizenship Act were called in aid by Mr Woodhouse in his submissions. He contended that the purpose of Division 4 was to detail the circumstances in which citizenship may be lost, thereby evincing an intention in the Citizenship Act that the exercise of the discretion to grant a certificate of citizenship could not subsequently be re-exercised in order to revoke the decision. Mr Woodhouse acknowledged that the applicants had not made their pledges of commitment and therefore had not had citizenship bestowed upon them but submitted that the Minister had done everything he was required to do under the Act once he had exercised his discretion under s13(1) of the Act to grant a certificate to each applicant.
Mr T Ginnane, counsel for the Minister, submitted that there was an implied power in the Minister to revoke a decision to grant a certificate of citizenship prior to citizenship being conferred upon an applicant for citizenship upon the making of a pledge of commitment to Australia.
In Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 28 ALD 480, at 486, French J dealt with the question as to whether a statutory discretion may be reconsidered. His Honour held that the answer depended on the construction of the relevant statute. French J said:
“Against the difficulties that may arise from the implication of a power to reconsider a decision there is the convenience and flexibility of a process by which a primary decision-maker may be persuaded on appropriate and cogent material that a decision taken ought to be re-opened without the necessity of invoking the full panoply of judicial or express statutory review procedures. There is nothing inherently angelical about administrative decision-making under the grant of a statutory power that requires the mind that engaged in it to be unrepentantly set upon each decision taken.”
Whether or not there is an implied power in the Minister to revoke a grant of Australian citizenship was discussed by Lee J in Smith-Davidson v Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 871, 875. His Honour said:-
“It is unnecessary in these proceedings to decide whether the Act contains such an implied power. It may be noted however, that unless the Act contained express words to the contrary the grant of a certificate of citizenship completed by the appropriate oath or affirmation would not be amenable to revocation. Such a grant is not a mere licence or contractual arrangement but is a grant of status without any reservation of a right of revocation exercisable at will.
...
By s 50 of the Act it is an offence for a person for the purpose of the Act to make a statement that is, to the knowledge of that person, false or misleading in a material particular or conceal, or cause or permit to be concealed, a material circumstance. The fact that whilst such a fraudulent act is made punishable as an offence, a certificate granted under the Act in consequence of that act is not invalid suggests that the legislature did not intend that a power to revoke the certificate be implied from the terms of Act. The provisions of s 21 of the Act confirm that view in respect of a certificate under which citizenship has been acquired. Pursuant to s 21 a person who has obtained Australian citizenship by virtue of a certificate granted to that person may be deprived of that citizenship in the minister’s discretion if that person has been convicted of an offence against s 50 of the Act in relation to the application for the certificate and the minister is satisfied that it would be contrary to the public interest for the person to continue to be an Australian citizen. If the minister makes such an order the certificate must be delivered up for cancellation by the minister pursuant to ss 42 and 48 of the Act.” (emphasis added).
I do not understand Lee J to have done more in the foregoing passages than doubt the existence of an implied power to revoke a certificate after citizenship had been attained. His Honour did not need to determine whether a certificate, absent the attaining of citizenship, may be revoked by the Minister.
In circumstances where a certificate has been issued but citizenship has not been conferred upon a person the combined effect of ss 21 and 50 of the Citizenship Act is not available to the Minister. As citizenship has not been attained no deprivation of it can occur. Rather than allow a certificate to remain in operation when the decision to grant it was based on erroneous or misleading information and oblige the Minister to take criminal proceedings against the holder of a certificate after the making of a pledge, in my view it is open to the Minister to revoke a decision to grant a certificate in such circumstances. I am also of the view that it is consistent with the Citizenship Act for the Minister to do so. The provisions of ss 21 and 50 constitute part of a code on the question of deprivation of citizenship and not upon the question of revoking a decision to grant a certificate. In Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93, 111, Gummow J said:-
“However, it would be taking too narrow a view of the authorities to say that the concerns which find expression in the limitation put upon the doctrine of estoppel are limited to ensuring the performance of a statutory duty. The same limitation has been said by high authority to apply where there is no duty to act, but merely a discretionary power. This has been put on the basis that in a case of a discretion, there is a duty under the statute to exercise a free and unhindered discretion and an estoppel cannot be raised (any more than a contract might be relied upon) to prevent or hinder the exercise of the discretion; the point is that the legislature intends the discretion to be exercised on the basis of a proper understanding of what is required by the statute, and that the repository of the discretion is not to be held to a decision which mistakes or forecloses that understanding ...”
That passage was cited with approval by Mason CJ in Attorney-General (NSW) v Quin (1990) 170 CLR 1, 17.
In the absence of a construction of the Citizenship Act which codifies the powers of the Minister to revoke a decision to grant a certificate of citizenship, the Court should be reluctant to hold that a discretion which has been exercised on the basis of an incorrect understanding should not be capable of being revoked by the repository of the discretion once the true situation has come to light. In my view, the Citizenship Act properly understood does not prohibit the Minister from revoking a decision to grant a certificate of citizenship prior to the attainment of citizenship by the holder of the certificate.
In Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No 1) (1991) 32 FCR 219, 225, Beaumont J (as a member of a Full Court) said:-
“Some administrative decisions, once communicated, may be irrevocable. But where it appears to a decision-maker that his or her decision has proceeded upon a wrong factual basis or has acted in excess of power, it is appropriate, proper and necessary that the decision-maker withdraw his or her decision.”
Mr Woodhouse invited the Court not to follow the approach of Beaumont J. He submitted that his Honour’s proposition was “stated too broadly and cannot be sustained”. He noted that the other members of the Full Court in Kawasaki had not taken the approach taken by Beaumont J. However the other members of the Full Court (Hill and Heerey JJ) did not say anything inconsistent with the judgment of Beaumont J on that issue. Mr Woodhouse contended that Beaumont J’s approach was inconsistent with the decision of the Full Court in Export Development Grants Board v EMI (Australia) Ltd (1985) 61 ALR 115. In the EMI case the Full Court held that the Board was not able to reassess a grant made in a previous year in respect of which it proceeded upon erroneous information. It was held to be functus officio in that regard but able to make consequent reductions in future grants. The finding that the Board was functus officio depended upon an analysis of the relevant legislation. It is not inconsistent with the quotation from the judgment of Beaumont J in Kawasaki set out above. It is rather an illustration of the first sentence of it.
In my view, Beaumont J’s approach in Kawasaki should be followed where an analysis of the relevant legislation permits it. This is especially so where, as Mr Ginnane submitted, it makes good administrative sense to do so, rather than requiring the Minister to commence a proceeding under s 50 of the Act against the applicants.
Mr Woodhouse referred the Court to a series of cases to support the proposition that it is inappropriate to imply a power to revoke a decision in circumstances where Parliament has provided a statutory remedy to deal with any perceived problem arising from the initial decision. However, I do not agree with his submission that Parliament has so provided in the Citizenship Act. The “statutory remedy” is only referable to circumstances where citizenship has been attained after the issuing of a certificate and the making of a pledge.
I therefore find that the Minister was empowered to revoke his decision to issue a certificate of citizenship to each applicant and that the AAT did not fall into error in so finding.
Does s 33(3) Acts Interpretation Act 1901 apply in any event to empower the Minister to revoke a certificate of citizenship?
Section 33(3) Acts Interpretation Act 1901 provides as follows:
“(3) Where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by-laws) the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.”
Mr Woodhouse conceded that the Court was bound to hold that a certificate of citizenship was an instrument for the purposes of s 33(3) Acts Interpretation Act 1901 having regard to the decision of the Full Court in Barton v Croner Trading Pty Ltd (1984) 3 FCR 95. See especially at 110. See also Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales) (1978) 1 ALD 167, 172, per Brennan J (as he then was). However, Mr Woodhouse contended that the Citizenship Act evinced a contrary intention in Division 4. I reject that submission. In my opinion, the Citizenship Act does not evince an intention to prohibit the revocation of a certificate of citizenship by the Minister in circumstances where a pledge of commitment has not been made. I hold that view for the same reasons which led me to reject Mr Woodhouse’s submission that the Citizenship Act provided a code in relation to the loss of a certificate of citizenship.
In my opinion, s 33(3) Acts Interpretation Act 1901 provides further support for the proposition that the Minister is able to revoke a certificate of citizenship in circumstances where the applicant for citizenship has not made a pledge of commitment.
ALLEGED WRONGFUL EXCLUSION OF EVIDENCE
Mr Woodhouse submitted that a question of law raised in the appeal is whether the AAT wrongfully excluded the receipt into evidence of a psychiatric report concerning the first applicant. Mr Woodhouse contended that the report ought to have been admitted as evidence additional to the oral testimony of the first applicant being evidence which tended to support his testimony that he had consulted a psychiatrist for the particular purpose of treatment for depression. This submission fails at its first hurdle. Counsel for the applicants before the AAT did not seek to tender the report to rely upon its contents. The transcript of the proceedings before the AAT reveals the following exchange between counsel for the applicants, Mr Gobbo, and McDonald D.P.:-
“MR GOBBO: Well, with respect, sir, I did not propose to tender this as evidence of the truth of the contents of it so the absence of the doctor should not be an issue in this case. I was simply going to ask my client whether he had consulted someone in relation to the complaints that are set out. It does go to the question of the detriment that I did foreshadow as part of the constituent requirements of an estoppel argument. But it is also relevant from the point of view of matters that perhaps ought to have been taken into account by the department when they reviewed this matter.
If you have a situation where you have made an initial decision and revoked it, then what has happened in the intervening period becomes relevant. Now, we have talked about the date of the original application for citizen (sic) as being the cut off point for documentation. Well, quite clearly that is not right, it ought to come back to the point where the new decision was made. Now, in the interim what has happened is my client has proceeded on the basis and the expectation that the circumstances that prevailed at the time of the initial application, namely the department being satisfied about certain matters would continue to be the case. He has continued his business on that basis.
Now, it goes to the exercise of your discretion in the broadest sense to appreciate that there was some reliance upon that decision being sustained after the re-investigation of this matter of whether the medical practice bore upon it or not. I accept that it is at the distant end of what is directly relevant to the considerations that mainly occupy your mind but nevertheless a matter that may be of some assistance to you.
THE D. PRESIDENT: I think you can ask him the question over whether he has seen somebody ---
MR GOBBO:Yes.
THE D. PRESIDENT: --- in relation to and why, but really the report which a quick glance at it does reveal a fair amount of fairly subjective and heresy (sic) evidence, I do not think would be of overall assistance. So perhaps just ask him the questions and I will not accept the report as an exhibit.”
Mr Gobbo then proceeded to ask Dr Leung whether he consulted a psychiatrist and why. He took the matter no further.
In the circumstances I agree with Mr Ginnane’s submission that no question of law is raised by the alleged exclusion of the psychiatric report from the evidence before the AAT.
EVIDENCE THAT THE MINISTER WAS MISLED
Mr Woodhouse submitted that there was no evidence upon which the AAT was able to find that the applicants had actually misled the Minister and there was consequentially no finding by the AAT to that effect.
Mr Ginnane submitted that what was relevant in the context of the Citizenship Act, having regard to the preamble to the Act, was that the applicant for citizenship was required to display a high level of openness or candour, and that a lack of openness or candour was a relevant factor which the AAT was entitled to conclude justified the exercise of the discretion to revoke the decision to grant the certificate.
In his reasons for decision, McDonald D.P. said as follows:
“21. In completing applications for citizenship, as with applications for various types of visas, the Australian community is entitled to expect applicants to adhere to high standards of openness and honesty. The Tribunal is satisfied that::
.In relation to Mr and Mrs Leung’s application, the nomination of No. 4, 3-15 Christie Street, Wollstonecraft, Sydney, as their ‘residential address’ in circumstances where they have never lived at the address, let alone resided there, is misleading. While the word ‘resident’ is indicative of a person’s status and does not necessarily carry with it a requirement to own or rent property (a vagrant can be a resident of Australia - see Kyvelos and Director-General of Social Security (1981) 3 ALN [Note No 77] N120), it does assume a specific context when juxtaposed with the word ‘address’. It is clear from the facts that the applicants’ residential address is Hong Kong and not Australia. The Tribunal does not regard this as a minor matter because the absence of any information at all in the application for citizenship concerning the true residential address situated in Hong Kong created a misleading impression that the applicants were, at the time of the application, residing in Australia. While they owned the property nominated, that have never occupied it and it has apparently at all times been rented.
.For Mr Leung to describe his occupation as “export manager”, given his main source of income at the time was clearly from his medical practice and diagnostic centres in Hong Kong, is also misleading.
22. A departmental officer looking at such applications should not be required to refer to earlier documents relating to Mr and Mrs Leung’s application for permanent residency in order to determine the veracity of the contents of the citizenship applications. The latter documents should be able to stand alone in reflecting the true state of the applicants’ circumstances. It follows that the Tribunal is satisfied that the applicants have not adhered to the standards of openness and honesty required of those applying for Australian citizenship. Since the grant of Australian citizenship under the provisions of s.13(1) of the Act is discretionary, it behoves applicants applying for the exercise of a discretion in their favour to adhere to the required standards. In this case, the Tribunal has found that the applicants did not. Accordingly, for the reasons stated, the Tribunal is satisfied that a discretion should not be exercised in Mr and Mrs Leung’s favour to grant them citizenship.”
I interpret the above passage from the decision of the AAT as finding that the applicants failed to be open with the Minister’s delegate in their applications for citizenship and had created misleading impressions. No error of law on this ground has been disclosed.
CONCLUSION
In my opinion, having regard to the foregoing, the AAT committed no error of law in deciding to affirm the decision of the Minister’s delegate to revoke the decision to grant a certificate of citizenship of each applicant. The appeal must be dismissed, with costs.
I certify that this and the preceding fifteen (15) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Marshall.
Associate:
Date:
APPEARANCES
Solicitor for the Applicants: P. Woodhouse
Johnathan Wong Solicitors
Counsel for the Respondent: T. Ginnane
Solicitor for the Respondent: Australian Government Solicitor
Date of hearing: 16 April 1997
Date of judgment: 2 May 1997
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