Cayzer v Minister for Immigration and Border Protection [2016] FCAFC 176

Cayzer v Minister for Immigration and Border Protection [2016] FCAFC 176

The appeal failed because the Full Court was bound by Shaw v Minister for Immigration and Multicultural Affairs to treat the appellant as an alien unless he had acquired Australian citizenship, and R v Pearson; Ex parte Sipka foreclosed the asserted s 41 voting-right argument. The appellant did not challenge or overcome the primary judge's finding that he had not proved the Minister ever granted him a certificate of Australian citizenship, which was fatal to his claim of citizenship under the Australian Citizenship Act 1948. There was no appellable error in the primary judge's refusal to find that the appellant took the oath of allegiance in 1981, and the proposed amended ground 3 had no...

Jurisdiction
Australia
Judgment Date
14 December 2016
Procedural Posture
Appeal Concerning Cancellation of a Class BF Transitional (permanent) Visa Under S 501(2) of the Migration Act 1958 (cth) and Constitutional/citizenship Issues / Full Court Appeal From Cayzer V Minister for Immigration and Border Protection (no 3) [2016] FCA 806
Outcome
Leave to amend ground 3 was refused and the appeal was dismissed.
Legal Topics
['alienage Under S 51(xix) of the Constitution' 'visa Cancellation Under S 501(2) of the Migration Act 1958 (cth)' 'australian Citizenship by Certificate and Oath Under the Australian Citizenship Act 1948 (cth)' 'sections 24 and 41 of the Constitution and Voting Rights' 'appellate Review of Factual Findings']
['constitutional Law' 'migration Law' 'administrative Law' 'citizenship Law'] ['alienage Under S 51(xix) of the Constitution' 'visa Cancellation Under S 501(2) of the Migration Act 1958 (cth)' 'australian Citizenship by Certificate and Oath Under the Australian Citizenship Act 1948 (cth)' 'sections 24 and 41 of the Constitution and Voting Rights' 'appellate Review of Factual Findings']

Case Brief

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Procedural Posture

Appeal Concerning Cancellation of a Class BF Transitional (permanent) Visa Under S 501(2) of the Migration Act 1958 (cth) and Constitutional/citizenship Issues / Full Court Appeal From Cayzer V Minister for Immigration and Border Protection (no 3) [2016] FCA 806

Legal Issues

  1. 1 ['Whether the appellant was an alien for the purposes of s 51(xix) of the Constitution when the Minister cancelled his visa' "Whether the appellant's enrolment, voting and candidacy meant he was one of the people of the Commonwealth or had a constitutionally protected right to vote preventing cancellation" 'Whether the appellant had become an Australian citizen by applying for citizenship and taking an oath in 1981' 'Whether leave should be granted to amend ground 3 to allege that the primary judge erred by failing to find that the appellant took the oath of allegiance under the Australian Citizenship Act 1948' "Whether the primary judge made appellable error in rejecting the appellant's evidence about the alleged oath or citizenship ceremony"]

Ratio Decidendi

The appeal failed because the Full Court was bound by Shaw v Minister for Immigration and Multicultural Affairs to treat the appellant as an alien unless he had acquired Australian citizenship, and R v Pearson; Ex parte Sipka foreclosed the asserted s 41 voting-right argument. The appellant did not challenge or overcome the primary judge's finding that he had not proved the Minister ever granted him a certificate of Australian citizenship, which was fatal to his claim of citizenship under the Australian Citizenship Act 1948. There was no appellable error in the primary judge's refusal to find that the appellant took the oath of allegiance in 1981, and the proposed amended ground 3 had no...

Court Disposition

Leave to amend ground 3 was refused and the appeal was dismissed.

Orders

  • ['Leave to amend ground 3 of the amended notice of appeal be refused.' 'The appeal be dismissed.' "Unless a party notifies the Court in writing by 4.00pm on 16 December 2016 that it opposes this order, the appellant pay the respondents' costs of the appeal, as agreed or assessed."]