Leung v Minister for Immigration and Ethnic Affairs [1995] FCA 1182

two orders in the alternative. The primary order sought by

the Minister is that the application be dismissed, pursuant to s. 10 (2)(b) of the ADJR Act, on the ground that under the Administrative Appeals Tribunal Act 1975 the applicants are entitled to seek (and, indeed, have sought) review by the

Administrative Appeals Tribunal of the relevant decision.

The alternative order sought by the Minister is that the Court should order, pursuant to O. 29 r. 2 of the Court's rules, a separate determination before trial of a particular question, namely: was the respondent, by his delegate, authorised by s. 13 of the Australian Citizenship Act 1948 or s. 33(3) of the Act's Interpretation Act 1901 or otherwise to revoke his decision to grant the applicants a certificate of Australian citizenship? The motion is opposed by the applicants, who say that the appropriate forum for the determination of all questions of law and of fact in this

Section 10(2)(b) of the ADJR Act provides that a Court may, in its discretion, refuse to grant an application under ss. 5, 6 or 7 of the ADJR Act that was made to the Court in respect of a decision, or conduct engaged in for the purpose of making a decision, for the reason that adequate provision is made by any law other than the ADJR Act under which the applicant is entitled to seek a review by the Court, by another court, or by another tribunal, of that decision or

The application for review filed by the applicants relies on various grounds in support of it which echo the familiar language of s. 5 of the ADJR Act. It is asserted that in making the decision of purported revocation there was a breach of the rules of natural justice; the decision was not authorised by s. 13 of the Citizenship Act or s. 33(3) of the Interpretation Act; and the decision and the engagement in the relevant conduct were an improper exercise of the relevant power because irrelevant considerations were taken into account, or there was a failure to take into account relevant considerations, or an exercise of discretionary power in accordance with a rule of policy without regard to the merits of a particular case, and the exercise of the power was

It was also said the decision and the relevant conduct involved an error of law, and there was no evidence to justify the making of the decision or to support the relevant conduct, or that the decision and conduct were otherwise contrary to law. The relief sought by the applicants is that the decision of the delegate of the Minister be quashed and set aside and the matter be remitted to the Minister to be determined in

The applicants are nationals of the Colony of Hong Kong. On 18 August 1994 they made an application for Australian

citizenship and, in so doing, they sought the exercise of the

Minister's discretion under s. 13(4)(b)(i) of the Citizenship Act to treat periods spent abroad as periods spent in

Australia on the basis that they were engaged in activities

beneficial to the interests of Australia. They claimed that they had been engaged in the business of exporting Australian

Pursuant to s. 13(1) of the Citizenship Act the Minister May grant a certificate of Australian citizenship to a person who satisfies the Minister that the person is a permanent resident, and that the person has been present in Australia as a permanent resident for certain periods mentioned in the section. The purpose of s. 13(4)(b)(i) of the Citizenship Act, in the case of a person who was not relevantly present in Australia as a permanent resident is to, in effect, deem that person to have been so, so as to satisfy the qualification of

On 30 August 1994 the applicants' application for citizenship was approved, and a ceremony for the presentation of the relevant certificate of citizenship was set down for 20 October 1994. The applicants were notified of that approval in September 1994. I have been informed from the bar table that the relevant certificate of citizenship has been signed by or on behalf of the Minister. In October 1994 the Department of Immigration and &Ethnic Affairs received

information suggesting that the applicants had misled the

respondent by providing false information to obtain their citizenship, and that the applicants were not engaged in activities beneficial to the interests of Australia, as they

The Department made enquiries and conducted certain interviews of the applicants and, in due course, the Minister decided to revoke his decision to grant citizenship to the applicants and to refuse their application for citizenship. On 15 February 1995 the applicants applied to' the Administrative Appeals Tribunal to review the Minister's decision. That application is pending before the Tribunal, and its fate will depend upon the outcome of the hearing of the proceedings before this Court today. The application for

an order of review in this Court was filed on 2 March 1995.

The onus of seeking to persuade this Court that it should exercise its discretion under s. 10(2)(b) in refusing to grant an application on the ground that adequate provision is made by, in this case the Administrative Appeals Tribunal Act 1975, under which the applicants are entitled to seek a review by the Tribunal of the relevant decision of the delegate for the Minister, lies upon the party who seeks to so persuade the Court; see Kelly v Coates (1981) 35 ALR 93 per Toowey J at 95, and Queensland Newsagents Federation Limited v Trade Practices Commission (1993) 118 ALR 527 per Spender J at 539,

and Re Beck, an unreported judgment of Everatt J, 31 August

There is, I think, no doubt that the applicants are entitled to seek a full review of facts and law before the Tribunal in the hearing before the Tribunal that is pending and awaiting the outcome of this motion. This Court may, of course, examine all questions of law that are relevant and examine questions of fact, but only to the extent that they are raised by the questions of law and are necessarily

The Tribunal's authority is much wider being, as it is, an administrative body charged with the task of reviewing all relevant questions of fact and law concerning the decision that is impugned in this case. Subject to one point of some importance which I shall mention in a moment, I would be of the view that this is a case where plainly the onus has been established of persuading the Court that the matter is more appropriately dealt with in the Tribunal than this Court. I will turn to that one qualification, and it is the matter which is raised as an alternative order sought by the Minister in his notice of motion, namely, that there be tried

separately the question to which I have already referred.

Citizenship has not yet been conferred upon the applicants (though the Minister had taken the decision to do

so, and followed it by signing the certificates). The

requisite oath has not been administered to the applicants and certificates not formally presented to them. Thus the applicants do not yet have the status of Australian citizenship. But that does not, of course, answer the question, whether the Minister is empowered to revoke the

decision which he has previously taken to grant citizenship.

The question of the Minister's power of revocation of his earlier decision is one of some difficulty. It has not been the subject of any authoritative decision of the Court as yet, but it is a question which has been adverted to more than once. It arose before Lee J in Australian Capital Equity Pty Limited v Beale (1993) 114 ALR 50 where his Honour gave consideration to a number of questions, including the question whether s. 33(3) of the Act's Interpretation Act authorises a revocation by the Minister of an anterior decision by him or

his delegate under s. 13 of the Citizenship Act to grant

Section 33(3) of the Act's Interpretation Act provides

"Where an Act confers a power to make, grant or issue an 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. "

"As used in section 33(3) of the Interpretation Act an instrument must be a document of legislative character. "

It has been made clear by counsel for the applicants that they will argue that s. 33(3) has no application, because no relevant instrument here is of a legislative character. Counsel for the Minister has referred me to a _ subsequent decision of Lee J, where his Honour made certain observations touching the question before the Court, including the question of whether the Minister is empowered by implication from the terms of s. 33(3) of the Interpretation Act to revoke a

His Honour did not find it necessary to decide that question but made certain observations about it, to which I need not refer. However, he went on to say, in his reasons

"In appropriate circumstances it may be said that continuation of the grant of a certificate under which acquisition of citizenship remains incurred could _ be incompatible with fundamental provisions of the Act [that is the Citizenship Act]jand that a power to revoke the grant may be implied. For example, an act of fraud, which may have the effect of subverting a clear purpose of the Act, may supply an implied power to revoke a grant uncompleted by an oath or affirmation. "

His Honour went on to make certain further observations touching the point in paragraph 29 from which, when read in the light of his Honour's reasons as a whole, his Honour clearly regarded as an arguable question, whether even on the assumption that s. 33(3) of the Interpretation Act is confined to a legislative instrument, nevertheless a certificate of citizenship may be revoked on certain grounds, including the ground of fraud; whatever the content of fraud may be in this

Plainly the question of the Minister's authority to revoke his earlier decision to grant the applicants a certificate of Australian citizenship is one which is open to debate; there was a serious question of law to be determined with respect to it. However, if the relevant source of authority of revocation assumes fraud on the part of the applicants that, of course, raises immediately questions of fact; questions of fact which, no doubt, in this case will be

It seems to me that in all the circumstances the preferable course for this Court to take is to allow all questions of fact to be decided by the Administrative Appeals Tribunal, not this Court. Depending upon the findings of that Tribunal, the questions of law to which I have just referred May or may not in fact arise. If they do then the questions

of fact and law will be determined by the Tribunal, and a

party will then have the right to come to this Court to appeal

on a question of law, if that be the appropriate thing to do.

I am therefore not persuaded that the existence in this case of an important and interesting question of law operates against my view that otherwise would have applied to have the matter dealt with by the Administrative Appeals Tribunal. The relevant onus has been satisfied, after taking into account all relevant facts, including the question that arises, or questions that arise, being matters of law. Accordingly, the Court orders that the application for an order of review be refused and that the application be dismissed pursuant to s. 10(2)(b) of the Administrative Decisions Judicial Review Act

This order is obviously without prejudice to the rights of the applicants to seek a full review, as is their right, under the Administrative Appeals Tribunal Act 1975, a review

The question arises as to the orders that should be made as to the costs of the motion and the cost of the proceeding generally. Counsel for the Minister seeks an order that the applicants pay his costs of the motion and of the proceeding, and that is resisted by counsel for the applicants who submits that the proper order is that there be no order as to the

costs of either the motion or the proceeding generally.

If it were not for the seriously arguable question of law that has arisen, to which I referred earlier, then I would be of the view that costs should have followed the event. But it seems to me that there is inherent in this matter, and has been so since its inception, and raised squarely by the motion, a question or questions of law, to which I have briefly adverted in my reasons for judgment, and need not

I think in all the circumstances it was not unreasonable for the applicants to bring the application to this Court, as they thought it was the most appropriate forum to determine the question of law, and not unreasonable for them to resist the motion, albeit unsuccessfully, on the same ground. In those circumstances I think the fair order for costs is that there be no order as to the costs of any party of the motion or of the proceeding generally. The Court, accordingly, makes

I certify that this and the preceding eleven (11) pages are a true copy of the reasons for judgment herein of the Honourable Justice Lockhart.

Counsel for the Applicants Solicitors for the Applicants Counsel for the Respondent