Zhao v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 998

Zhao v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 998

The decision made under s 26(3) of the Australian Citizenship Act 2007 (Cth) was affected by a denial of procedural fairness because Mr Yang was not given prior notice or the adverse information relied upon, and the statutory scheme did not expressly or impliedly exclude such fairness. The delegate's determination was consequently quashed.

Parties
First Applicant: Long Zhao; Second Applicant: Wenjuan Liu; Third Applicant: Shuoqi Zhao; Fourth Applicant: Jianzhong Yang; Fifth Applicant: Kaijun Yang; Sixth Applicant: Kaiyi Yang; Respondent: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Jurisdiction
Australia
Judgment Date
16 July 2020
Procedural Posture
Judicial Review / Judgment After Hearing
Outcome
Determination quashed in respect of the Fourth Applicant; declaration granted; costs awarded to Fourth Applicant; proceeding otherwise dismissed.
Legal Topics
Procedural Fairness, Exclusion of Procedural Fairness, Delayed Citizenship, Ministerial Determinations, Adequacy of Reasons
Migration Law Administrative Law Procedural Fairness Exclusion of Procedural Fairness Delayed Citizenship Ministerial Determinations Adequacy of Reasons

Case Brief

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Parties

Long Zhao

First Applicant

Wenjuan Liu

Second Applicant

Shuoqi Zhao

Third Applicant

Jianzhong Yang

Fourth Applicant

Kaijun Yang

Fifth Applicant

Kaiyi Yang

Sixth Applicant

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Respondent

Procedural Posture

Judicial Review / Judgment After Hearing

Legal Issues

  1. 1 Whether the rules of procedural fairness apply to a determination under s 26(3) of the Australian Citizenship Act 2007 (Cth)
  2. 2 Whether there was a denial of procedural fairness in failing to give prior notice and disclose adverse information
  3. 3 Whether the decision was irrational, based on no evidence, or involved irrelevant considerations

Ratio Decidendi

The decision made under s 26(3) of the Australian Citizenship Act 2007 (Cth) was affected by a denial of procedural fairness because Mr Yang was not given prior notice or the adverse information relied upon, and the statutory scheme did not expressly or impliedly exclude such fairness. The delegate's determination was consequently quashed.

Court Disposition

Determination quashed in respect of the Fourth Applicant; declaration granted; costs awarded to Fourth Applicant; proceeding otherwise dismissed.

Orders

  • The Fourth Applicant is entitled to make the pledge of commitment before any person specified in section 27(3) of the Australian Citizenship Act 2007 (Cth), wherever that person is located, and such persons are authorised to receive such a pledge of commitment from the Applicant.
  • The determination made on 6 December 2019 under s 26(3) of the Australian Citizenship Act 2007 (Cth) in respect to the Fourth Applicant is quashed.