Makarov v Minister for Home Affairs [2021] FCAFC 129

Federal Court of Australia

Makarov v Minister for Home Affairs [2021] FCAFC 129 Appeal from: Makarov v Minister for Home Affairs (No 3) [2020] FCA 1655

File number: NSD 5 of 2021

Judgment of: LOGAN, BANKS-SMITH AND ANDERSON JJ

Date of judgment: 28 July 2021

Catchwords: ADMINISTRATIVE LAW – appellant emigrated from Ukraine to Australia, applied for Australian citizenship, and became an Australian citizen – appellant arrested and imprisoned in late 2004 – relevant Minister exercised power in s 34(2) of the Citizenship Act 2007 (Cth) to revoke appellant's Australian citizenship – appellant sought judicial review of that decision – primary judge dismissed the appellant's application for judicial review APPEAL AND NEW TRIAL – appellant contends that primary judge erred in finding appellant had not given evidence to the effect that he was never asked to provide information about the status of Ukrainian citizenship or evidence that appellant had never been asked as to whether he had applied to renounce his citizenship – Minister accepts that this statement by primary judge was erroneous – no relevant error – erroneous statement about the absence of evidence had no bearing upon primary judge's assessment of the substantive grounds or the way in which the primary judge exercised discretion to refuse relief APPEAL AND NEW TRIAL – alleged error in exercise of discretion – appellant contends primary judge erred in assessing the appellant's explanation for delay in seeking judicial review of the relevant decision – appellant contends primary judge failed to adequately take into account relevant matters – appellant contends primary judge misunderstood or did not adequately consider appellant's evidence – no error of principle in primary judge's exercise of discretion EVIDENCE – alleged error in exercise of discretion – appellant alleges that the primary judge erred in making an order under s 136 of the Evidence Act 1995 (Cth) limiting use of two expert reports addressing Ukrainian law – appellant contends primary judge failed to be properly satisfied of or consider relevant matters in s 136 – appellant contends there is an injustice in permitting Minister to adduce evidence regarding appellant's Ukrainian citizenship status while preventing appellant from doing so – primary judge did not err in making an order under s 136 of the Evidence Act 1995 (Cth) ADMINISTRATIVE LAW – respondents' notice of contention – respondents challenge primary judge's finding that relevant Minister did not give active intellectual consideration to appellant's prospective statelessness – in light of material before Minister, relevant Minister engaged in active intellectual consideration of whether revoking the appellant's Australian citizenship would render the appellant stateless – respondents' notice of contention upheld