Walsh v Minister for Immigration and Multicultural Affairs

[2002] FCA 155

FEDERAL COURT OF AUSTRALIA

Walsh v Minister for Immigration & Multicultural Affairs [2002] FCA 155

Australian Citizenship Act 1948 (Cth), s 10C
Administrative Appeals Tribunal Act 1978 (Cth), ss 43, 44

SUSAN WALSH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Q 125 OF 2001

DOWSETT J
28 FEBRUARY 2002
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 125 OF 2001

ON APPEAL FROM A PRESIDENTIAL MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	SUSAN WALSH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	28 FEBRUARY 2002
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.A declaration be made that the applicant was born outside of Australia on or after 26 January 1949 for the purposes of s 10C of the Australian Citizenship Act 1948 (Cth).

3.The decision of the Deputy President dated 8 May 2001 be set aside.

4.The decision of the delegate of the Minister communicated on 7 April 2002 be set aside.

5.The Minister for Immigration and Multicultural Affairs be directed to register the applicant as an Australian citizen pursuant to s 10C of the Australian Citizenship Act 1948 (Cth).

6.The respondent pay the applicant’s costs of the proceedings, including reserved costs, but excluding the costs dealt with by the order made on 7 August.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 125 OF 2001

ON APPEAL FROM A PRESIDENTIAL MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	SUSAN WALSH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	DOWSETT J
DATE:	28 FEBRUARY 2002
PLACE:	BRISBANE

FURTHER REASONS FOR JUDGMENT

1. I previously published my reasons for allowing this appeal and adjourned proceedings to enable the parties to make submissions as to appropriate orders and costs.  They  have disagreed in both areas. 

   ORDERS

2. The applicant submits that I should allow the appeal and set aside the decision of the Administrative Appeals Tribunal and that of the Minister’s delegate, substituting therefor a determination that the applicant satisfies the requirements of s 10C of the Australian Citizenship Act 1948 (Cth). The respondent agrees that the decisions should be set aside but submits that the matter should be remitted to the Minister’s delegate for further determination in accordance with my decision. This approach appears to be based upon the view that the delegate’s decision involved only the question of whether the applicant was born outside of Australia for the purposes of par 10C(4)(c) and did not address the question as to the applicant’s character posed by par 10C(4)(d).

3. The delegate was considering an application for registration as an Australian citizen pursuant to subs 10C(2). The application was refused. The reasons for refusal raised only the question of the applicant’s place of birth. No other reason was given for refusing the application. The only available inference is that the applicant had otherwise demonstrated compliance with s 10C. Any other approach would result in the undue fragmentation of the review process. This approach was taken by the Administrative Appeals Tribunal (at par 7). The notice of appeal seeks an order that the proceedings be remitted for further hearing, but the applicant subsequently indicated that she sought an order substituting the appropriate decision for that made below. Had the Tribunal taken the view of s 10C which I have adopted, it would clearly have made an order pursuant to s 43 of the Administrative Appeals Tribunal Act 1978 (Cth) which would have disposed finally of the matter.  I should now make such an order pursuant to s 44 of that Act.  I will make the following orders:

   (a)       I allow the appeal;

   (b)I declare that the applicant was born outside of Australia on or after 26 January 1949 for the purposes of s 10C of the Australian Citizenship Act 1948 (Cth);

   (c)       I set aside the decision of the Deputy President dated 8 May 2001;

   (d)I set aside the decision of the delegate of the Minister communicated on 7 April 2000; and

   (e)I direct the Minister for Immigration and Multicultural Affairs to register the applicant as an Australian citizen pursuant to s 10C of the Australian Citizenship Act 1948 (Cth).

   COSTS

4. As to costs, the matter has become unduly complicated by the way in which it was conducted before me and because of the rather complex nature of the relevant legislation.  The matter was argued on 7 August, 17 August and 1 November 2001.  Although the applicant’s argument focussed upon the question of whether the applicant had been born in Australia, it also raised a supplementary issue concerning the question of whether she had been entitled to permanent residence in Australia as at the date upon which Papua New Guinea obtained independence.  The latter issue had been raised in the notice of appeal and in the applicant’s outline of argument delivered in anticipation of the hearing on 7 August.  See subpars 4(i) and 4(j) of the notice of appeal and pars 39 et seq of the outline of submissions filed by the applicant on 31 July 2001.  As the argument on 7 August developed, counsel for the respondent became concerned that he was not in a position to deal fully with the issue.  In so saying I do not mean to reflect adversely on him.  It emerged that the matter was more complex than it had originally appeared.  At the respondent’s request, the matter was adjourned to 17 August.  On that day the respondent was again unable to proceed and agreed to pay the applicant’s costs of a further adjournment to 1 November.  On that day the Solicitor-General appeared for the respondent, primarily to argue the residence question.  I infer that the respondent considered that matter to be of some importance.

5. As I have observed, the applicant had, by her notice of appeal and outline of argument, given notice of her intention to argue the residence question.  Neither the adjournment to 17 August nor that to 1 November was a result of any conduct on her part.  It was rather a result of the belated recognition by the respondent or his legal advisers of the scope and importance of the point.

6. The respondent now submits that because the applicant was unsuccessful on the residence question (which was the focus of argument on 1 November), she should not have her costs incurred after 17 August.  However, as far as I can see, the applicant’s case was substantially the same on 1 November as it had been on 7 August, although the outline of argument filed on 29 October may have contained some forensic refinements.  I consider that costs incurred after 17 August were largely attributable to the respondent’s understandable concern about the residence point and the equally understandable failure to identify the importance of that point at an earlier stage.  In those circumstances the respondent, and not the applicant, should bear the relevant costs.

7. I order that the respondent pay the applicant’s costs of the proceedings, including reserved costs, but excluding the costs dealt with by the order made on 7 August.  Those costs remain payable pursuant to that order.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:             28 February 2002

Date of Hearing:	7 August 2001
Counsel for the Applicant:	Mr R N Alldridge
Solicitor for the Applicant:	Van Zyl Taljaard Lawyers
Counsel for the Respondent:	Dr S J Lee
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	17 August 2001
Counsel for the Applicant:	Mr R N Alldridge
Solicitor for the Applicant:	Van Zyl Taljaard Lawyers
Counsel for the Respondent:	Dr S J Lee
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	1 November 2001
Solicitor for the Applicant:	Van Zyl Taljaard Lawyers
Counsel for the Respondent:	Mr D M J Bennett QC Mr S Gageler SC Dr S J Lee
Solicitor for the Respondent:	Australian Government Solicitor
Dates of Written Submissions:	7 & 8 February 2002
Date of Judgment:	28 February 2002