Vincent Tze Ching Leung & Anor v Minister for Immigration & Multicultural Affairs [1997] FCA 1313 (28 November 1997)

FEDERAL COURT OF AUSTRALIA

CITIZENSHIP - revocation of a certificate granted under s 13(1) of the Citizenship Act 1948 (Cth)

ADMINISTRATIVE LAW - revocation of an administrative decision - when is a decision-maker functus officio - is an invalid administrative decision valid until set aside by a court - presumption of regularity - effect of a decision procured by fraud or misrepresentation

Acts Interpretation Act 1901 (Cth) s 33(3)

Australian Citizenship Act 1948 (Cth) ss 13(1)(a)(d)(e), (4)(b)(i)

Ainsworth v Wilding [1896] 1 Ch 673 mentioned

Chandler & Ors v Alberta Association of Architects [1989] 2 SCR 848 applied

Comptroller General of Customs v Kawasaki Motors Pty Ltd (No 1) (1991) 32 FCR 219 discussed

Grillas v Minister of Manpower & Immigration [1972] SCR 527 discussed

Hoffmann-La Roche & Co A.G. v Secretary of State for Trade and Industry [1975] AC 295 considered

Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 145 ALR 532 mentioned

Lange v Board of School Trustees of School District No 42 (1978) 9 BCLR 232 applied

Ousley v The Queen (unreported, High Court, 20 October 1997) considered

Posner v Collector for Inter-State Destitute Persons (Vic) [1946] HCA 50; (1946) 74 CLR 461 considered

Pearce v City of Coburg [1973] VR 583 mentioned

Preston Banking Co v Allsup & Sons [1895] 1 Ch 141 mentioned

Re 56 Denton Road, Twickenham Middlesex [1953] 1 Ch 51 discussed

R v Home Secretary; Ex parte Khawaja [1984] 1 AC 74 applied

Rootkin v Kent County Council [1981] 1 WLR 1186 discussed

R v Wicks [1997] UKHL 21; [1997] 2 WLR 876 applied

Re Trizec Equities Ltd v Area Assessor Burnaby-New Westminster (1983) 147 DLR (3d) 637 applied

R v Secretary of State for Home Department; Ex parte Choudhary [1978] 1 WLR 1178 applied

R v Secretary of State for Home Department; Ex parte Hussein [1978] 1 WLR 700 applied

Re St Nazaire Co (1879) 12 ChD 88 mentioned

Re Swire (1885) 30 ChD 239 mentioned

Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429 discussed

Smith v East Elloe Rural District Council [1956] UKHL 2; [1956] AC 736 considered

Zamir v Secretary of State for Home Department [1980] AC 930 applied

M. Akehurst, "Revocation of Administrative Decisions" [1982] Pub Law 613

W.W. Wade, "Unlawful Administrative Actions: Void or Voidable" (1967) 83 LQR 499; (1968) 84 LQR 95

R.A. Macdonald, "Reopenings, Rehearings and Reconsiderations in Administrative Law" (1979) 17 Osgoode Hall LJ 207

E. Campbell, "Revocation and Variation of Administrative Decisions" (1996) 22 Mon. L.R. 30

VINCENT TZE CHING LEUNG & ANNA CHUI MEI WONG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 213 of 1997

BEAUMONT, HEEREY AND FINKELSTEIN JJ

MELBOURNE

28 NOVEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY	VG 213 of 1997
BETWEEN:	vincent tze ching leung & ANNA CHUI MEI WONG Appellants
AND:	minister for immigration and multicultural affairs Respondent

JUDGES:	beaumont, heerey and finkelstein jj
DATE OF ORDER:	28 november 1997
WHERE MADE:	melbourne

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellants pay the respondent's costs of the appeal.

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

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 213 of 1997

BETWEEN:	VINCENT TZE CHING LEUNG AND ANNA CHUI MEI WONG AppELlantS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGES:	BEAUMONT, HEEREY, FINKELSTEIN JJ
DATE:	28 NOVEMBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

BEAUMONT J:

I have had the advantage of reading the reasons of Finkelstein J. I agree with those reasons and the orders proposed.

I certify that this page is a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont

Associate:

Dated: 28 November 1997

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 213 of 1997

BETWEEN:	VINCENT TZE CHING LEUNG & ANNA CHUI MEI WONG AppELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGES:	BEAUMONT, HEEREY AND FINKELSTEIN JJ
DATE:	28 NOVEMBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

HEEREY J:

I have had the advantage of reading in draft the reasons of Finkelstein J. I agree with his Honour that the appeal should be dismissed, although for somewhat different reasons.

In my opinion there is no general rule or principle of administrative law that decisions based upon a wrong factual basis may be revoked by the decision-maker - still less that such decisions do not need to be revoked and may simply be ignored. The supposed general rule would necessarily extend indefinitely in time and to factual errors for which persons affected by the decision were in no way responsible. Such persons might have arranged their own affairs on the basis of the decision.

The question whether a decision can or cannot be revoked, like the related question whether an administrative order valid on its face must be obeyed until set aside, must turn on a proper construction of the statute in question. The latter question was considered by the House of Lords in R v Wicks [1997] UKHL 21; [1997] 2 WLR 876. Mr Wicks was prosecuted for breach of an "enforcement notice" issued under town planning legislation. The notice required all parts of a building above a certain height to be removed by a certain date. Mr Wicks exercised a statutory right of appeal to an inspector appointed by the Secretary of State but the appeal was dismissed. When tried on indictment for the offence of non-compliance with the notice, Mr Wicks sought to raise a defence that the decision to issue the enforcement notice was invalid as being made in bad faith and motivated by immaterial considerations. The trial judge upheld the submission of the prosecution that the attack on the validity of the notice should have been raised by way of an application for judicial review. For the purposes of the criminal trial, the notice, being formally valid and not actually quashed by the Secretary of State or a court, was to be treated as valid.

Appeals to the Court of Appeal and House of Lords were dismissed. After reviewing the authorities, Lord Hoffmann posed the issue in these terms (at 893):

"In my view the question in this case is likewise one of construction. What is meant by 'enforcement notice' in section 179(1) of the Act of 1990? Does it mean a notice which is not liable to be quashed on any of the standard grounds in public law? Or does it mean a notice issued by the planning authority which complies with the formal requirements of the Act and has not actually been quashed on appeal or judicial review? The words 'enforcement notice' are in my view capable of either meaning. The correct one must be ascertained from the scheme of the Act and the public law background against which it was passed."

After analysing the legislation, its history, and the practical implications of the respective views, his Lordship concluded that "enforcement notice" bore the second meaning. The other principal speech, that of Lord Nicholls of Birkenhead, was to the same effect. His Lordship noted (at 884) that s 179 was "embedded in an elaborate statutory code, with detailed provisions regarding appeals".

In the present case, a critical factor is that the decision in question was taken after the grant of a certificate of Australian citizenship under s 13(1) but before a pledge of commitment was made under s 15. Those sections provide, relevantly for present purposes.

"13. (1) Subject to this section, the Minister may, in the Minister's discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:

(a) the person is a permanent resident;

(b) the person has attained the age of 18 years;

(c) the person understands the nature of the application;

(d) the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one year during the period of 2 years immediately preceding the date of the furnishing of the application;

(e) the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than 2 years during the period of 5 years immediately preceding the date of the furnishing of the application;

(f) the person is of good character;

(g) the person possesses a basic knowledge of the English language;

(h) the person has an adequate knowledge of the responsibilities and privileges of Australian citizenship; and

(j) if granted a certificate of Australian citizenship, the person is likely to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia.

15. (1) A person to whom a certificate of Australian citizenship has been granted under this Division shall be an Australian citizen:

(a) in the case of a person:

(i) who, at any time after lodging an application for a certificate of Australia citizenship (including a time after the grant of the certificate), makes a pledge of commitment in the manner provided by this section and in accordance with either of the forms set out in Schedule 2; and

(ii) ...

on and after the day on which the certificate is granted or on which the person makes such a pledge of commitment, whichever last occurs; or

(b) ...

(2) A pledge of commitment shall:

(a) be made before any of the following persons:

(i) the Minister;

(ii) a Judge of a federal court who is an Australian citizen;

(iii) a Judge or Magistrate holding office under a law of a State or Territory, being a Judge or Magistrate who is an Australian citizen;

(iv) a person, or a person included in a class of persons, approved in writing by the Minister for the purposes of this subparagraph, being a person who is an Australian citizen; and

(b) if the Minister has made arrangements under section 41 for it to be made in public, be made in accordance with those arrangements unless the Minister otherwise permits in writing."

Once these two events occur a person becomes an Australian citizen by operation of the statute. Deprivation of citizenship can then only occur in the circumstances prescribed by s 21, that is to say:

* conviction under s 50 of the Act; or

* conviction of an offence against an Australian or foreign law (being an offence committed before the grant of the certificate); and being sentenced to twelve months imprisonment; and

* the Minister being satisfied it would be contrary to the public interest for the person to continue to be an Australian citizen.

Section 50 provides as follows:

"50. (1) A person shall not, for a purpose of or in relation to this Act:

(a) make, or cause or permit to be made, a representation or statement that is, to the knowledge of the person, false or misleading in a material particular; or

(b) conceal, or cause or permit to be concealed, a material circumstance.

Penalty: $1,000 or imprisonment for 6 months, or both.

(2) A prosecution for an offence against subsection (1) may be commenced at any time within 10 years after the commission of the offence."

Obviously enough, an innocent misrepresentation would not constitute a breach of s 50 and hence could not enliven the power of deprivation conferred by s 21. Deprivation of Australian citizenship can only occur in accordance with that section: cf Pearce v City of Coburg [1973] VR 583. The grounds for deprivation of citizenship under s 21 cover a much narrower ground that the criteria for grant of a certificate under s 13 (1).

The Act therefore contemplates a period of time - which in practical terms could be expected to be fairly brief - during which one but not both of the essential pre-requisites of citizenship (certificate and pledge) exist in relation to a given person. During that period a certificate which on its face complies with the formal requirements of the Act is to be treated as valid unless set aside by appropriate proceedings. However the Act necessarily implies a power, during this period, to revoke the certificate if it comes to the notice of the Minister that a statutory criterion for the issue of the certificate did not in fact exist.

Such an implication is necessary for at least the following reason. Let it be assumed that it is discovered between grant of certificate and making of pledge that some of the criteria prescribed by s 13(1) did not exist in relation to a person. If the certificate could not be revoked, the pledge ceremony would go ahead. If s 21 deprivation grounds existed, citizenship would be conferred only to be taken away. The ceremony would be an unseemly charade. If no such grounds existed, citizenship would be conferred on a person known to be not entitled.

However the revocation of the certificate would be in itself a decision attracting the rules of natural justice. The person concerned would be entitled to know the grounds on which it was now said that he or she did not meet the criterion in question, such as not being of good character (s 13(1)(f)), or not possessing a basic knowledge of English (s 13(1)(g)), and to be given the opportunity to put a case. An approach which treats a decision to grant a certificate on a wrong factual basis as being not a decision at all and something which can be ignored does not accommodate these considerations.

The appeal should be dismissed with costs.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey

Associate:

Dated: 28 November 1997

IN THE FEDERAL COURT OF AUSTRALIA	GENERAL DISTRIBUTION
DISTRICT REGISTRY	vg 213 of 1997

BETWEEN:	vincent tze ching leung & ANNA CHUI MEI WONG Appellants
AND:	minister for immigration and multicultural affairs Respondent

JUDGES:	beaumont, heerey and finkelstein jj
DATE:	28 november 1997
PLACE:	melbourne

REASONS FOR JUDGMENT

FINKELSTEIN J:

The question raised by this appeal is whether the respondent (the Minister), having granted to each appellant (Mr Vincent Leung and his wife Ms Anna Wong) a certificate of Australian Citizenship under s 13(1) of the Australian Citizenship Act 1948 (Cth) (the Citizenship Act 1958 ), has power to revoke that grant.

Australian citizenship is governed by the Citizenship Act. Subject to certain exceptions and provided certain requirements are satisfied, Australian citizenship is conferred upon a person who is born in Australia and has one parent who is an Australian citizen or is a permanent resident and on a person who is born outside Australia and has one parent who is an Australian citizen: ss 10 and 10B. Citizenship is also conferred on a person who, under a law of a State or territory, is adopted by an Australian citizen: s 10A.

In addition, the Minister is given the power to admit a person who is not an Australian citizen to Australian citizenship. This process involves two steps. A person wishing to obtain citizenship must have been granted a certificate of Australian citizenship and must make the prescribed pledge of commitment: see s 15. The sequence in which these steps occur is immaterial but usually the grant of the certificate is the first step. Section 13(1) gives to the Minister the power, in the Minister's discretion, to grant a certificate when an applicant satisfies the Minister that he or she meets certain criteria. For the purposes of this appeal it is necessary to mention only two of the criteria. First, the applicant must be a permanent resident: s 13(1)(a). Secondly, the applicant must have been present in Australia for a minimum period immediately preceding the application. That period is either a period or periods amounting in aggregate to not less than one year during the period of two years immediately preceding the application (s 13(1)(d)), or a period or periods amounting in aggregate to not less than two years during the period of five years immediately preceding the application (s 13(1)(e)). For the purpose of determining whether an applicant has been present in Australia for the requisite period the Minister has a discretion to treat a period during which the applicant was not present in Australia as a period during which the applicant was present. One circumstance where the Minister can exercise this discretion is when the applicant is outside Australia and is "engaged in activities that the Minister considers beneficial to the interests of Australia": s 13(4)(b)(i).

The appellants first came to Australia on 21 July 1991 having been granted permanent visas to remain in Australia. Thereafter they spent much of their time outside Australia. On 18 August 1994 each appellant lodged with the Minister an application for the grant of the certificate under s 13(1). Each application set out the information that was necessary to enable the Minister to determine whether the appellants satisfied the criteria set out in s 13(1). According to each application it was conceded, as was the fact, that the appellants had not been present in Australia for the period required by either s 13(1)(d) or s 13(1)(e). However, the appellants requested the Minister to exercise his discretion under s 13(4)(b)(i) to treat those periods after 21 July 1991 during which the appellants were not in Australia as if they had been present. In a written submission that accompanied the applications the appellants set out the facts and circumstances in light of which the Minister was requested to exercise his discretion. It is not necessary to recite all those facts and circumstances. It will be sufficient if I set out one paragraph from the submission which accurately summarises the material:

"Yeung (sic) are primarily and in essence exporters of Australian primary produce and mineral resources to various destinations in Asia. The most prolific of exports for the Leungs has been in the field of Australian opals to the markets of Hong Kong. In choosing these products and this market, the Leungs are opening for Australia a niche in the luxury goods market one of the most difficult but potentially lucrative markets of them all. The skills and efforts required by Leung (sic) to open this market are of a much higher level than the skills and efforts involved in the export of commodities and raw materials which are solely judged by a price and quality which can be objectively compared with other potential competitors."

It was said that these activities were conducted on behalf of two companies, Group Benefit Development Pty Ltd a company that had been established by the appellants and which was said to have assets worth in excess of $600,000 and Grand Opal Pty Ltd a company of which Mr Leung was said to be the overseas sales director.

An officer of the Department of Immigration and Ethnic Affairs considered the submission and recommended that the Minister favourably exercise his discretion under s 13(4)(b)(i) so that the time spent by the appellants outside Australia would be treated as a period of permanent residence in Australia. The reasons given for the recommendation were "that Mr and Mrs Leung, despite the fact that they have spent so little time in Australia since their date of arrival, have demonstrated that all the trips they have made overseas since their date of arrival have all been spent in activities beneficial to the interests of Australia. They have demonstrated a history of promoting and exporting Australian goods overseas on an ongoing basis." (my emphasis)

On 30 August 1994 a delegate of the Minister decided that each appellant should be granted a certificate under s 13(1) and on 15 September 1994 the Minister wrote to them advising that their applications had been approved. Certificates were drawn up and forwarded to the North Sydney City Council in anticipation of a ceremony at which the appellants would make their prescribed pledge of commitment.

About two weeks later the Department received a letter from an anonymous "Australian citizen" who alleged that Mr Leung was fraudulently posing as an exporter in order to obtain his Australian citizenship. This "Australian citizen" wrote that Mr Leung was a well known doctor practising in Hong Kong and not an exporter of Australian goods as he had claimed. The Department immediately arranged for Mr Leung to be interviewed in Hong Kong. In that interview Mr Leung conceded that he had been practising as a doctor in Hong Kong since 1980 and that he spent many hours each day at his medical practice. Mr Leung also said that his wife worked on a part-time basis at a diagnostic centre owned by Mr Leung. Nevertheless, Mr Leung still maintained that both he and his wife spent a good deal of their time developing export markets for Australian rough opals and fresh produce. His explanation for not mentioning his medical practice in Hong Kong in his submission was that his solicitor had advised him that it was not a relevant matter.

It was by now apparent that the decision of the delegate that the appellants had been engaged in activities beneficial to the interests of Australia whilst they were outside Australia was based on an erroneous understanding of the facts. Whilst some of their time outside Australia may have been spent in promoting the export of Australian goods a substantial amount of that time was spent in pursuing their own private interests.

Consequently, the delegate decided to "revoke" the decision to grant the certificates. A note written by the delegate records his decision in the following terms: "The previous decision is revoked and I am refusing the application by Mr & Mrs Leung for Australian citizenship under s 13(4)(b)(i)." This note should be understood as indicating that the reason for the "revocation" was that the delegate was not satisfied that the appellants had been engaged in activities that were beneficial to Australia during those periods when they were outside Australia and that those periods could not be taken into account for the purposes of satisfying the requirements of ss 13(1)(d) or 13(1)(e). Strictly, it was not correct to say that the applications for Australian citizenship had been refused under s 13(4)(b)(i).

The decision of the delegate was given a different description in a letter dated 2 February 1995 which was sent to the appellants notifying them of the decision. The relevant part of the letter reads:

"[T]he decision to approve your applications has been revoked. Revocation is analogous to the rejection of an application. The Minister for Immigration and Ethnic Affairs has the power to revoke a decision to grant citizenship under the Australian Citizenship Act (ACA) before an applicant takes an oath or affirmation. Power to do this is contained in Section 33(3) of the Acts Interpretation Act 1901."

To understand this letter it is necessary to set out s 33(3) of the Acts Interpretation Act 1901 (Cth) (the Interpretation Act). It provides:

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

It is evident why reliance was placed on s 33(3) of the Interpretation Act as the source of the power to revoke the grant of the certificates. There is no express power in the Citizenship Act to take that step. Section 21 does confer power on the Minister to deprive a person of his Australian citizenship if that person is an Australian citizen by virtue of a certificate. But that power is only exercisable when the citizen has been convicted of certain offences and the Minister is satisfied that it would be contrary to the public interest for the person to continue to be an Australian citizen. Thus, in the absence of any express power it was no doubt assumed that it was necessary to rely on an implied power and s 33(3) would provide that implication if the subsection was capable of having application to the grant of a certificate under s 13(1). More of this later.

Section 52A of the Citizenship Act provides that an application may be made to the Administrative Appeals Tribunal for the review of various decisions made under the Citizenship Act including a decision under s 13 refusing an application for the grant of a certificate: s 52A(a). It will be recalled that the letter of 2 February 1995 referred to the decision that had been made as a decision to revoke the approval of the application for the grant of a certificate and that decision was described as "analogous to the rejection of an application". I will assume that a revocation is to be so regarded although it is possible in some circumstances to treat what had occurred as involving two separate decisions, viz. a decision to revoke the grant of a certificate and a decision to refuse to grant a certificate. At all events, the appellants applied to the Administrative Appeals Tribunal to review the decision as described in the letter relying on s 52A(a) to found jurisdiction in the Tribunal. No point has been taken that the Tribunal lacked jurisdiction and I will also proceed on that basis.

Before the Tribunal the appellants put their case on three bases. First, the appellants said that on the evidence that was presented to the Tribunal they were entitled to a favourable exercise of discretion under s 13(4)(b)(i) so that they would satisfy the requirements for residence laid down by s 13(1)(d) or s 13(1)(e). Secondly, the appellants argued that the Minister (through his delegate) did not have the power to revoke the grant of the certificates because he was functus officio or, if he did have that power, its exercise in the circumstances was an abuse of that power. Finally, it was contended that the Minister was estopped from revoking the grant of the certificates. For the Minister it was submitted that the facts did not justify the exercise of the discretion under s 13(4)(b)(i). On the question of his power, the Minister relied not only on s 33(3) of the Interpretation Act but it was also submitted that there was an implied statutory power to revoke the grant of a certificate which could be exercised at any time before an applicant had become an Australian citizen by making the pledge of commitment.

The Tribunal decided that the appellants did not qualify for the exercise of the discretion under s 13(4)(b)(i). On the argument that the Minister was functus officio, the Tribunal held that there was an implied statutory power that enabled the Minister to revoke the grant of a certificate if the original decision was based on an erroneous view of the facts provided the applicant had not, at the time of revocation, become an Australian citizen. The Tribunal did not accept that s 33(3) of the Interpretation Act was a relevant source of power. The reason given was that s 33(3) only applied to the issue or grant of an instrument that was of a legislative character and a certificate under s 13(1) was not of that type. The allegations of abuse of power and estoppel were rejected. Accordingly, the decisions under review were affirmed.

The appellants then appealed to a single justice of the Court pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). Such an appeal is confined to a question of law arising from the decision of the Tribunal. The principal argument that was relied upon during the appeal was that the Minister did not have the power to revoke the grant of a certificate for the reasons submitted to the Tribunal. The trial judge rejected this submission. He came to the same conclusion as the Tribunal namely that there was an implied power of revocation which was exercisable before an applicant obtained Australian citizenship provided the original decision was based on an erroneous view of the facts. In support of his conclusion the trial judge relied upon a passage in the judgment of Beaumont J in Comptroller General of Customs v Kawasaki Motors Pty Ltd (No 1) (1991) 32 FCR 219 at 225 where his Honour (as a member of the Full Court) said:

"Some administrative decisions, once communicated, may be irrevocable. But where it appears to a decision-maker that his or her decision has preceded upon a wrong factual basis or has acted in excess of power, it is appropriate, proper and necessary that the decision-maker withdraw his or her decision."

The trial judge also held that s 33(3) of the Interpretation Act was an additional source of power to revoke the grant of a certificate for the reason that the instruments to which s 33(3) could apply were not confined to instruments of a legislative character. In this regard his Honour relied on Barton v Croner Trading Pty Ltd (1984) 3 FCR 95 esp at 110 and Re Brian Lawlor Automotive Pty Ltd & Collector of Customs (NSW) (1978) 1 ALD 167 at 172. The trial judge confined the application of s 33(3) to the period between the grant of a certificate under s 13(1) and the time when an applicant becomes an Australian citizen. Precisely how the power conferred by s 13(1) can be extended by s 33(3) for a limited period was not explained. For myself, I doubt whether s 33(3) can have that application but as the point was not argued it is not necessary to resolve it to arrive at a decision on this appeal and I say no more about it.

I can now turn to the submission made on the appeal to this Court. Here again it was argued that once the Minister (through his delegate) had granted a certificate under s 13(1) he was functus officio and could not revoke that grant. It was also submitted that a power to revoke a certificate could not be implied in the Citizenship Act and that the Citizenship Act manifested an intention that was contrary to the adoption of s 33(3) of the Interpretation Act.

In my opinion, it is possible to dispose of this appeal without embarking upon a consideration of the applicability of the principles of law which find their shorthand expression in the Latin phrase "functus officio". Further, the real issue that is raised by this appeal can be resolved without the need to consider when and in what circumstances it is appropriate to imply a power to revoke or reconsider a decision made in pursuance of a statutory right, duty or discretion although it is necessary to say something about those circumstances.

The origin of the principle of functus officio as that expression is currently employed is to be found in the latter part of the last century in England when it was decided that a final decision of a court could not be reopened. The reason given was that the power to reopen a dispute had been transferred to the court of appeal: Re St Nazaire Co (1879) 12 ChD 88. The rule applied only after the formal judgement of the court had been passed and entered and was subject to two exceptions, viz. where there had been a slip in drawing it up and where there had been an error in expressing the intention of the court: Re Swire (1885) 30 ChD 239; Preston Banking Co v Allsup & Sons [1895] 1 Ch 141; Ainsworth v Wilding [1896] 1 Ch 673. According to Jowett's Dictionary of English Law (2nd ed 1977) the principle applies to a judge, a magistrate or an arbitrator who has given his decision or made an award.

A similar rule applies to the exercise of a statutory power or function but for a different reason. If a statute confers a power or a function, once that power has been exercised or the function performed the purpose for its creation has been fulfilled with the consequence that the power or function is exhausted. In Blacks Law Dictionary (5th ed 1979) functus officio is defined as "a task performed" and it is applied to "an instrument, power agency etc which has fulfilled the purpose of its creation and is therefore of no further effect or virtue".

It is for this reason that where it is sought to reconsider the exercise of a statutory power or the performance of a statutory function it is necessary to find the power to do so in the statute. That power may be express or it may exist by way of implication. In the case of some statutes the power will be implied as a result of the application of s 33(3) of the Interpretation Act. The circumstances in which s 33(3) of the Interpretation Act will be held to apply to reconsider the grant or issue of an instrument have not been finally settled. There are cases that have held that s 33(3) only applies to the grant or issue of a document of a legislative character: see e.g. Australian Capital Equities Pty Ltd v Beale (1993) 41 FCR 242 at 256-257 per Lee J. There are other cases that support the view that the section can have application to the grant or issue of any instrument: see e.g. Re Brian Lawlor 1 ALD 167 at 172 per Brennan J. It is not necessary to resolve this difference of opinion.

When one turns to consider the circumstances in which a power of reconsideration will be implied an examination of the cases shows that no coherent set of principles has as yet been developed. The courts have been required to choose between two competing interests. On the one hand there is the desirability for the administration to be able to correct decisions arrived at as a result of an error of law or an error of fact. In some cases it may also be desirable that an administrative decision be altered when there has been a change in policy. On the other hand, if a decision is favourable to an individual its reconsideration may cause a real sense of grievance: see generally M Akehurst, "Revocation of Administrative Decisions" [1982] Pub Law 613.

These competing views are reflected in the cases. So it has been held that a decision of the War Damage Commission which had the duty of determining what amount was payable to an owner whose property had been damaged by enemy action could not be altered or withdrawn: Re 56 Denton Road, Twickenham [1953] 1 Ch 51. This authority is probably confined to the circumstance where the decision-maker is given the duty of deciding questions affecting existing legal rights and is not concerned with the case where the citizen will benefit from the exercise of a discretionary power. There it has been held that the power is capable of being exercised from time to time: see Rootkin v Kent County Council [1981] 1 WLR 1186 where the decision of a council to revoke the issue of a season ticket for bus travel was held to be within power when the original decision had been based on the erroneous belief that the ticketholder was required to travel a distance of more than three miles to school.

Other examples of cases where the power of reconsideration has not been implied include Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429 and Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 145 ALR 532. Sloane was concerned with the refusal of the Minister to reconsider an application for an entry permit under the Migration Regulations. French J held that the implication of such a power could generate endless requests for reconsideration and given that the Migration Act (Cth) contains specific provisions for the review of decisions the implication should not be made. In Jayasinghe Goldberg J came to the same conclusion with regard to the Refugee Review Tribunal, a tribunal that had been established by the Migration Act 1980 to review decisions to refuse to grant or cancel a protection visa issued to a person who claimed to be a refugee under the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1976. It may be that these cases can be explained on the basis that the decision-maker was concerned to determine the existing rights of an applicant as was the case with the War Damage Commission considered in 56 Denton Road. However, in Canada the Supreme Court held that the Immigration Appeal Board has power to reconsider its decisions where an applicant sought to rely on new evidence: see Grillas v Minister of Manpower & Immigration [1972] SCR 527. That board is authorised to hear appeals against deportation orders and in that regard performs a function which is similar to that performed by the Refugee Review Tribunal.

There are other cases where it has been held that a power to reconsider should be implied where new evidence becomes available which throws doubt on the correctness of the earlier decision. Re Lornex Mining Corporation Ltd and Bukwa (1976) 69 DLR (3d) 705 is an example of such a case. There the British Columbia Supreme Court (Verchere J) held that the Human Rights Commission had the power to reconsider a matter in those circumstances. The court reached this conclusion because there was no right of appeal by way of rehearing from a decision of the Human Rights Commission and because it was necessary that the Human Rights Act 1969 (B.C.), which established the Commission, should be given a beneficial construction.

Kawasaki Motors is another example where the implication of a power to reconsider was made. I have already cited from the reasons of Beaumont J where the relevant principle appears and it is to the effect that a decision that proceeded on a wrong factual basis should be capable of revocation. I do not consider that his Honour was seeking to lay down a principle of general application to all administrative decision-makers but was confining himself to the exercise of the power there under consideration namely the grant of a tariff concession order under Part XVA of the Customs Act 1901 (Cth). However, if it is to be taken as a statement of general principle to be applied whenever possible, it has much to commend it in my opinion. There is a good deal to be said for the view that an administrative decision which is plainly erroneous should not stand.

The cases that I have mentioned so far are concerned with the reconsideration of a valid administrative decision. What is the position in relation to an invalid decision? By an invalid decision I mean a decision which can be impugned for jurisdictional error or for a failure to observe procedural fairness or one that is brought about by fraud or misrepresentation. It is common to find that expressions such as "ultra vires", "void" and "nullity" are used to describe these decisions. For a time they were also described as "voidable". For an illuminating discussion of these concepts reference should be made to the articles by Professor W Wade entitled, "Unlawful Administrative Actions: Void or Voidable" in (1967) 83 LQR 499 and (1968) 84 LQR 95.

When an administrative decision is invalid the question arises whether the decision-maker may recognise the fact of invalidity and seek to treat the decision as inoperative. Is a decision-maker permitted to do so or must the decision-maker's power to do so depend upon the existence of an express or implied power of reconsideration?

Before turning to answer this question I need to deal with the consequences of an administrative decision being invalid. It has been said that an administrative decision is not invalid or void in any absolute sense: see Wade and Forsyth, Administrative Law (7th ed) (1994) at pp 339-344. In part this derives from a statement in the speech of Lord Radcliffe in Smith v East Elloe Rural District Council [1956] UKHL 2; [1956] AC 736 where, in connection with a compulsory purchase order, his Lordship said at 769-770:

"An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."

In Ousley v The Queen (unreported, High Court, 20 October 1997) Gummow J expressed himself in much the same terms at p 68:

"The more appropriate principle is that the validity of an administrative act or decision and the legality of steps taken pursuant to it are presumed valid until the act or decision is set aside in appropriate proceedings. Where `acts are of an official nature ... everything is presumed to be rightly and duly performed until the contrary is shown'" (citations omitted)

There is also a passage in the speech of Lord Diplock in Hoffmann-La Roche & Co A.G. v Secretary of State for Trade and Industry [1975] AC 295 which is relevant to this issue. Whilst dealing with the status of subordinate legislation on an interlocutory application his Lordship said at 366:

"All that can usefully be said is that the presumption that subordinate legislation is intra vires prevails in the absence of rebuttal, and that it cannot be rebutted except by a party to legal proceedings in a court of competent jurisdiction who has locus stand to challenge the validity of the subordinate legislation in question."

On the other hand, there are recent statements to the effect that an invalid decision can be void in the sense that, generally speaking, its existence can be ignored. This was the view of McHugh J in Ousley when he said (at p 31) that an administrative act made outside jurisdiction can be challenged in collateral proceedings for the reason that it is void and therefore need not be set aside by a court that has supervisory jurisdiction. To support this principle McHugh J referred to the following passage in the judgement of Dixon J in Posner v Collector for Inter-State Destitute Persons (Vic) [1946] HCA 50; (1946) 74 CLR 461 at 483:

"[W]hen a party is entitled as of right upon a proper proceeding to have an order set aside or quashed, he may safely ignore it, at all events, for most purposes. It is, accordingly, natural to speak of it as a nullity whether it is void or voidable, and, indeed, it appears almost customary to do so."

The House of Lords has also recently considered this question in R v Wicks [1997] UKHL 21; [1997] 2 WLR 876. There Lord Hoffman referred to the views of Lord Radcliffe in Smith and (at 890) said that they were not capable of being generalised and that all that could be gained from Lord Radcliffe's speech was:

"that it is conceptually possible to have an act which is entirely valid and effective until quashed in appropriate proceedings. Whether a particular exercise of statutory power should be regarded as such an act is an altogether different question."

His Lordship also considered the passage cited from Lord Diplock in Hoffman-La Roche and said at 890:

"The presumption of validity to which Lord Diplock referred was in my view an evidential matter at the interlocutory stage and the presumption existed pending a final decision by the Court. Lord Diplock was not putting forward the sweeping proposition that subordinate legislation must be treated for all purposes as valid until set aside."

In other words the presumption of the validity of an administrative decision, to the extent that the presumption is to be made in a particular case, is no more than a rule of evidence pursuant to which a certain assumption will be made by a judge unless there is evidence which contradicts that assumption. As Kirby J said in Ousley at 95 the presumption is merely a tool in the process of reasoning to a decision. See also 9 Wigmore on Evidence (Chadbourn revision 1981) at para 2491.

It seems to me that it is possible to reconcile these apparently conflicting statements by considering the different purposes for enquiring whether an invalid decision is to be regarded as effective. If the validity of the decision is at issue in curial proceedings then the question that arises is whether the decision is of such a class or character that it is appropriate for the court to assume that it is valid unless the contrary is established by the party seeking to challenge it validity. The answer might depend upon the nature of the decision or it might depend upon the terms of the statute pursuant to which the decision was taken. Here one is only concerned with the burden of proof of an issue and not with the operational effect of a decision. Sometimes it is also necessary to enquire whether an invalid decision has any effect. There is no doubt that an invalid administrative decision can have operational effect. For example it may be necessary to treat an invalid administrative decision as valid because no person seeks to have it set aside or ignored. The consequence may be the same if a court has refused to declare an administrative decision to be invalid for a discretionary reason. In some circumstances the particular statute in pursuance of which the purported decision was taken may indicate that it is to have effect even though it is invalid or that it will have effect until it is set aside.

What is the effect of an invalid decision made under s 13(1) of the Citizenship Act? If an applicant has been granted a certificate and has made the prescribed pledge, the Citizenship Act confers the status of Australian citizenship on that applicant notwithstanding that the certificate has been obtained by fraud or misrepresentation. That is the result of ss 15 and 21. Thus the position is that either the decision granting the certificate continues to have effect or the fact that it is invalid is of no consequence. The opposite is the case where an applicant has not made the prescribed pledge. If the decision to grant the certificate to that applicant is invalid the Citizenship Act does not require the conclusion that the decision will have any effect. The decision can be ignored and the applicant cannot become an Australian citizen unless he or she obtains the grant of another certificate.

I now return to consider the question whether an invalid decision can be ignored only if there is an express or implied power to revoke or reconsider that decision.

A convenient starting point is the joint judgment of Hill and Heerey JJ in Kawasaki. One contention with which their Honours were concerned was the power of a decision-maker to treat a decision as invalid and of no effect in circumstances where the person who would be adversely affected by the invalidity of the decision was in agreement that it should be treated as invalid. Their Honours said at 32 FCR at 229-230:

"It would in our opinion be strange if an administrative order remained valid until set aside by an order of a court even though the decision-maker did not seek to uphold the order. Courts have long recognised the rule of policy that there is public interest in the avoidance of litigation and the termination of litigation by agreement when it has commenced. The argument that disputed orders could not be treated, by agreement of all concerned, as void would directly conflict with that rule. Parties would be forced into pointless and wasteful litigation."

It is hard to disagree with this conclusion. It would indeed be strange if a decision could not be ignored when the party who obtained it no longer sought to uphold that decision. But the fact that there is no person who seeks to uphold a decision does not say anything about the source of the power of the decision-maker to ignore the decision in question. If the decision is valid when made can it be ignored merely because all of the interested parties wish it to be ignored? Surely the decision-maker could only act in pursuance of the statute that defined his or her powers. I do not see how jurisdiction to ignore any act can be conferred on a statutory decision-maker merely by the consent of the persons who might be affected by that act. It is the Parliament, through its legislation, that confers power on a decision-maker and not those citizens whose rights, privileges or interests might be affected by the decision-maker.

But what if the decision is invalid? Can the decision be ignored if the consent of all interested parties is obtained or is there some other principle that governs the situation? In my opinion, the true principle is this. To ignore an invalid decision is not to revoke it. It is merely to recognise that that which purports to be a decision does not have that character. To decide the matter again is not a reconsideration of it. It is in fact the original exercise of the power to make the decision. Hence, the rule embodied in the expression "functus officio" has no application to such a case. Nor is there any need to find either an express or an implicit power of reconsideration. Those doctrines, to the extent that they are applicable to administrative decision-making, only apply to validly made administrative decisions.

There are a number of cases that support this conclusion. One is Lange v Board of School Trustees of School District No 42 (1978) 9 BCLR 232, a decision of the Supreme Court of British Columbia. I take the facts from the headnote. Lange was a teacher employed by the school board. He was dismissed following a hearing at which the school board considered two charges of misconduct. The reasons for dismissal referred to a third charge which was not mentioned at the hearing. Lange appealed the decision of dismissal to a board of reference on the ground that there had been a breach of the rules of natural justice in that the school board had denied him the right to be heard in respect of the third charge. The board of reference agreed that there had been a denial of natural justice, allowed the appeal and ordered that Lange be reinstated. Thereafter the school board again suspended Lange on the basis of the original three charges of misconduct. Lange sought to review the second decision of the school board. He relied upon a number of grounds one of which was that the school board was without jurisdiction to reopen and rehear the complaint against him. Macfarlane J disposed of this contention in short compass. He said at 238:

"Counsel for the respondent contends, and I think correctly, that there is a difference between those cases where what was being reconsidered was a valid decision which the Board in question had earlier made and this case where the school Board, having had its earlier decision rendered a nullity, commenced fresh proceedings with respect to the same subject matter."

Accordingly, his Honour held that because the earlier order was a nullity there was no order in existence and the question remained to be decided anew.

The second decision to which reference should be made is the decision of the Supreme Court of Canada in Chandler & Ors v Alberta Association of Architects [1989] 2 SCR 848. The appellants were architects whose conduct was investigated by a board established under Architects Act (Alberta). The board found the appellants guilty of unprofessional conduct and imposed fines totalling $127,500 and ordered them to pay costs of approximately $200,000. These decisions were quashed on the basis that the board lacked jurisdiction to make them. The board then notified the appellants it intended to conduct a further enquiry and hand down a report of its findings being steps that were within its jurisdiction. The appellants challenged the board's ability to undertake the enquiry on the basis that it was functus officio. Sopinka J delivered the majority decision of the Supreme Court dismissing the application. In the course of his reasons Sopinka J noted that the Architects Act did not confer power on the board to rescind, vary, amend or reconsider its decisions. Accordingly, it was necessary to determine whether it had made a final decision and was therefore functus officio. His Honour accepted that, as a general rule, once a tribunal has rendered a decision on a matter before it that decision could not be reviewed because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change in circumstances. However, he went on to say that where a tribunal makes a decision that is a nullity it should be permitted to reconsider the matter and render a valid decision: Chandler at p 862. In support of this proposition his Honour relied upon the following passage from the judgment of McLachlin J in Re Trizec Equities Ltd v Area Assessor Burnaby-New Westminster (1983) 147 DLR (3d) 637 at 863:

"I am satisfied both as a matter of logic and on the authorities that a tribunal which makes a decision in the purported exercise of its power which is a nullity, may thereafter enter upon a proper hearing and render a valid decision: Lange v Board of School Trustees of School District No. 42 (Maple Ridge) (1978) 9 BCLR 232 (BCSC.) Posluns v Toronto Stock Exchange et al (1968), 67 DLR (2d) 165, [1968] SCR 330. In the latter case, the Supreme Court of Canada quoted from Lord Reid's reasons for judgment in Ridge v Baldwin, [1963] UKHL 2; [1964] A.C. 40 at p.79, where he said:

`I do not doubt that if an officer or body realises that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present its case, then its later decision will be valid.'

There is no complaint made by Trizec Equities Ltd. with respect to the hearing held on March 19th. Accordingly, while the court exceeded its jurisdiction by purporting to increase the assessments on the morning of March 17, 1982, its subsequent decision of March 19, 1982, stands as valid.

If the error which renders the decision a nullity is one that taints the whole proceeding, then the tribunal must start afresh. Cases such as Ridge v Baldwin, [1963] UKHL 2; [1964] A.C. 40 (H.L.): Lange v Board of School Trustees of School District No. 42 (Maple Ridge) (1978), 9 BCLR 232 (SCBC.) and Posluns v Toronto Stock Exchange, [1968] SCR 330, referred to above, are in this category. They involve a denial of natural justice which vitiated the whole proceeding. The tribunal was bound to start afresh in order to cure the defect."

In the result Sopinka J held that because the original decision of the board was a nullity it was entitled to properly dispose of the matter.

In addition, there are a number of migration cases in England where it has been held that a permission to enter and remain in the United Kingdom under s 3(1) of the Immigration Act 1971 (UK.) that was obtained by reason of fraud or misrepresentation can be ignored. It has not been suggested in any of these cases that the decision-maker is only entitled to ignore that permission if there is an express or implied statutory power to do so. For example in R v Secretary of State for Home Department; Ex parte Hussein [1978] 1 WLR 700 after referring to the false statement that had been made by the applicant to the immigration officer, Geoffrey Lane LJ said:

"The truth, as the applicant knew, was the opposite. In those circumstances, what appears to have been on the face of it a permission to stay here indefinitely was a permission obtained by fraud or misrepresentation and was therefore of no effect."

See also R v Secretary of State for Home Department; Ex parte Choudhary [1978] 1 WLR 1178, Zamir v Secretary of State for Home Department [1980] AC 930 and R v Home Secretary; Ex parte Khawaja [1984] 1 AC 74 (not following Zamir in part).

All of these cases confirm my view that an invalid decision made under s13(1) of the Citizenship Act can be ignored and that the principle of functus officio does not prevent the decision-maker from doing so: see also M. Akehurst, "Revocation of Administrative Decisions" supra at 619-620; R.A. Macdonald, "Reopenings, Rehearings and Reconsiderations in Administrative Law" (1979) 17 Osgoode Hall LJ 207 at 210-211 but compare E. Campbell, "Revocation and Variation of Administrative Decisions" (1996) 22 Mon. L.R. 30 at 41-45.

Let me now return to the facts of this appeal. Each appellant obtained a certificate from the Minister having misrepresented the nature of the activities that were being undertaken by the appellants whilst outside Australia. The Minister has now discovered the true position and whilst not wishing to allege that the appellants were guilty of fraud, has "revoked" the certificates granted to them and treated that revocation as a refusal of their applications for certificates under s 13(1). There is no doubt that the Minister was entitled to take these steps. No statutory power was required. The original decisions, having been obtained by a misrepresentation, were not decisions made in the true exercise of the power conferred by
s 13(1) and can be treated as having no effect.

Accordingly, in my view, the appeal should be dismissed with costs.

I certify that this and the preceding sixteen (16) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein

Associate:

Dated: 28 November 1997

Counsel for the appellant: P Woodhouse

Solicitor for the appellant: Jonathon Wong Solicitors

Counsel for the respondent: TJ Ginnane

Solicitor for the respondent: Australian Government Solicitor

Date of Hearing: 10 October 1997

Date of Judgment: 28 November 1997