The applicant's contentions
20 In the present case the applicant initially sought to make good two propositions. First, that the FMCA had no power under the ADJR Act to defer the effect of the order made on 13 February 2013 to 8 April 2013. Secondly, that the asserted error in the exercise of the jurisdiction of the FMCA had the consequence that it was not open to the second delegate to cancel the approval on 8 April 2013.
21 However, I do not understand how the second proposition follows from the first. Whether the first delegate's decision was set aside from the date of judgment (13 February 2013), or from 8 April 2013, the central question is whether it remained open to the Minister to cancel the approval given on 21 May 2009 after the decision of the first delegate was set aside.
22 Subject to the next argument to be identified, it does not matter in my view whether the order made by the FMCA took effect on the date it was made (13 February 2013) or on 8 April 2013. That is because, whatever might have been the opportunities available to the applicant to quickly make a pledge of commitment once the decision of the first delegate was set aside (if she could arrange to do so before the Minister could make a further decision), the fact is that such a pledge of commitment was not made before 8 April 2013. Section 20 of the Act makes a pledge of commitment a fundamental condition for citizenship. The applicant could not be a citizen without making a pledge of commitment, whatever error might have been made by the FMCA. The applicant's case, therefore, had to focus on the decision of the second delegate, and show it was invalid.
23 The argument advanced by the applicant to suggest that the decision of the second delegate was invalid did not depend on attacking the decision of the FMCA. The argument was that the only power which the Minister had to defer giving effect to the approval of 21 May 2009 was the power given by s 26(3) and (4) of the Act and, if a decision to cancel was not made within the period there specified, the Minister had no power to cancel the approval or prevent a pledge of commitment being made. When the decision of the first delegate was set aside, so it was argued, the period had expired and the applicant had a right to become a citizen.
24 Before I deal with that argument I will address the contention that the FMCA made a jurisdictional error although, as I have said, it does not seem to me to be of any real significance for the applicant's case in this Court whether the order of the FMCA took effect on 13 February 2013 or 8 April 2013.
25 The proceedings before the FMCA were based upon the ADJR Act. In particular, they were based on s 5(1)(a) of the ADJR Act which permits a court to set aside a decision on the ground of denial of natural justice.
26 Section 16(1) of the ADJR Act provides:
16 Powers of the Federal Court and the Federal Magistrates 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 Magistrates 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.
(Emphasis added.)
27 It therefore appears from the ADJR Act that a decision made in denial of natural justice might be set aside from a date chosen by the court in question in the exercise of its discretion. It is well established that even unlawful administrative decisions may have some effect until withdrawn or set aside (e.g. Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 at 342-3, 363; 24 ALR 307 at 314-5, 331). The decision of the first delegate, although unlawful, remained in place until set aside. The date on which that was to occur was within the discretion of the FMCA, having regard to all the circumstances.
28 The FMCA was well aware of the nature of the discretion which it was called upon to exercise. The decision of the FMCA referred to two judgments of Full Courts of this Court concerning the operation, meaning and effect of s 16(1)(a). In Wattmaster Alco Pty Ltd v Button (1986) 13 FCR 253 ("Wattmaster") the Court said (at 256-7):
Having in mind what is involved in "setting aside" or "quashing" (as to which see Commissioner for Railways v Cavanough (1935) 53 CLR 220 at 225) it may, at first sight, seem strange to speak of setting at naught a decision as at a particular date. However, it is consonant with the general scope and purpose of the Act and its varied application that there may be cases in which a decision is to be set aside, and, according to ordinary understanding, to become a nullity, but in which the nullifying should nevertheless take effect from some later date. The provision of such an option provides greater flexibility than is available with a writ of certiorari, which quashes a decision ab initio. Of course, the issue of the prerogative writs is a matter of discretion. They may be issued on terms; and a relevant consideration could be the conduct of the applicant, and of the respondent party, since the making of the order sought to be quashed, or set aside. In R v Greater London Council,·Ex parte Blackburn [1976] 1 WLR 550 the making of an order of prohibition was postponed to allow the defendant Council to take certain action. The processes of the Court when granting relief under the Administrative Decisions (Judicial Review) Act are very wide and considerations going to the date as at which an order is to take effect quite naturally fit the general scheme.
In our opinion no presumption arises under s 16(1)(a) as to the appropriate date from which a decision should be quashed or set aside. The matter is left entirely to the discretion of the Court. Neither is there any onus upon any party to demonstrate a special reason for selecting a date other than the date of the order. It is for the Court, having regard to all relevant circumstances, to select amongst the alternatives the date which will best do justice as between the parties and any other affected persons.
(Emphasis added.)
29 In Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1, Gray and Downes JJ said (at [44]):
44 … The grounds specified in s 5 of the ADJR Act, upon which the Court may make orders in respect of administrative decisions, are not expressed in terms of jurisdictional error. At least in some cases, those grounds include errors that are not necessarily described as jurisdictional errors. An example is the ground in s 5(1)(f), that the decision involved an error of law. See Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [27] and [57] per McHugh and Gummow JJ. It might be thought that, in enacting s 16(1)(a) of the ADJR Act, which permits the Court to quash or set aside a decision with effect from the date of the order or from such earlier or later date as the Court specifies, Parliament was acting on the assumption that even a decision tainted by jurisdictional error could have some force and effect, and leaving it to the Court to decide what force and effect should be accorded to such a decision. It must also be clear that, to the extent to which s 5 of the ADJR Act confers jurisdiction in respect of a "decision", it was intended that there should be jurisdiction, whether or not the decision concerned was subject to jurisdictional error. …
(Emphasis added.)
30 Their Honours went on to refer to, and apply, Wattmaster (at [46]-[47]).
31 Kenny J also referred to Wattmaster and said (at [79]):
79 … In particular, the remedies available under s 16 of the AD(JR) Act are broader and more flexible than those available at common law. …
32 I consider that I am bound to conclude that it was open to the FMCA to select a date from which the decision of the first delegate would be set aside and there was no jurisdictional error in setting aside the decision of the first delegate from 8 April 2013.
33 The applicant next argued that the power given to the Minister to defer the making of a pledge of commitment under s 26 of the Act imposed a limit on the power which the Minister had to cancel an approval. According to this argument the period had expired before the decision of the second delegate on 8 April 2013. Therefore, the applicant contended, it was not open to the Minister (or a delegate) to then cancel the approval of 21 May 2009 and the applicant must be allowed to become a citizen by making a pledge of commitment.
34 The argument, if it is accepted, would operate quite independently of any challenge to the judgment of the FMCA which, on the contrary if the applicant is to succeed, should be allowed to stand so that the decision of the first delegate remained set aside.
35 The first difficulty for the argument lies in identifying the time at which the suggested time limit arising from the operation of s 26 would expire. Although s 26(4) limits any period, or periods, of deferral to a total of 12 months, the only restrictions on the Minister's power to use s 26(3) are the necessity to do so for one of the reasons stated by s 26(3), coupled with the fact that an applicant has not, at that point, made the pledge. The Minister's power is not affected by any expectation that a pledge would normally be made within 12 months, failing which an approval might be cancelled for that reason (s 25(3)). Any time limit associated with s 26(3) has therefore not expired in the applicant's case.
36 The next difficulty which this argument faces is that it is founded upon the contention that any time limit imposed by s 26(4) affects the exercise of the Minister's discretion under s 25(2).
37 In the present case, the Minister's delegate did not use the power under s 26(3) of the Act to defer making the pledge of commitment. Nor was the approval cancelled because the pledge had not been made. Approval of the application for citizenship was cancelled on 8 April 2013 because the second delegate decided the applicant was not of good character.
38 The applicant's argument depends upon treating s 26(3) and (4) as directed to the same matters dealt with in s 25(2)(b), or at least to the same issue as s 25(2)(b)(iii). Even if that was so, that would not mean that the decision made on 8 April 2013 was invalid because, as I have explained, the time limit imposed by s 26(4) has not expired, or begun to run.
39 More importantly, s 26(3) does not limit the operation of s 25(2).
40 It is clear that s 25(2) is directed to a consideration of the matters referred to in s 21(2)(b), (g) or (h). Cancellation of an earlier approval requires a decision that a specified condition is not satisfied. The possibilities are not exhausted by the matters referred to in s 26(3). Those possibilities are not exhausted even if attention is confined to s 25(2)(b)(iii).
41 It is possible that, in a given case, s 26(3) and s 25(2) might each be relied upon. A determination under s 26(3) might delay an applicant making the pledge of commitment and a delegate might later make a decision under s 25(2)(b). That is not what occurred in the present case and the existence of that possibility does not govern the operation of s 25(2)(b). Whether or not s 26(3) is available and whether or not s 26(3) is used, cancellation of approval under s 25(2)(b) need only satisfy the conditions there stated, not those in s 26(3).
42 Section 25(1) makes it clear that until a pledge has been made (where that is required by s 20(b) of the Act), it is open to the Minister to cancel an approval on any of the grounds stated in s 25(2)(b). The power of cancellation in s 25(2)(b) was not affected by the error made by the first delegate. Even though it is accepted by the Minister that it was not open to the first delegate to impede the processing of the steps which would normally lead to the applicant having an opportunity to make the pledge that does not mean that the applicant acquired an enforceable right to compel the Minister to allow her to become a citizen despite the findings which the second delegate made about her character.
43 It follows from the foregoing discussion that there is no independent basis to set aside the second delegate's decision of 8 April 2013.
44 The application to this Court should be dismissed with costs.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.