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

JUDGMENT No. dl 82 / 78

N (o)6) [e) U. ) eeecccceccen )

VICTO Cc ST ) No. VG 124 of 1995 )

E VISION )

BETWEEN: V.T. LEUNG and ANOR Applicant AND: MINISTER FOR _ IMMIGRATION N F Ss Respondent 19 July 1995 R ONS FO

LOCKHART J.

The substantive application in this matter is an

application under ss. 5 and 6 of the Administrative Decisions Judicial Review Act 1977 (the ADJR Act) and s. 39B of the Judiciary Act 1903. This application seeks to review the decision dated 2 February 1995 of the delegate of the respondent, the Minister for Immigration and Ethnic Affairs, to revoke an earlier decision of the Minister to grant to the applicants a certificate of Australian citizenship, and any

conduct engaged in for the purpose of making the decision.

The application makes clear that the relevant decision (relevant decision) of the Minister's delegate that is the subject of review is a decision pursuant to s. 13 of the Australian Citizenship Act and s. 33(3) of the Act's Interpretation Act 1901. The Minister has moved the Court for

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