Huang Ziao Hong v Minister for Immigration & Ethnic Affairs [1995] FCA 1158

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No NG 739 of 1995 ) GENERAL DIVISION ) BETWEEN: HUANG ZIAO HONG Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent

CORAM: HILL J PLACE: SYDNEY DATED: 10 NOVEMBER 1995

REASONS FOR JUDGMENT

In excess of twenty months ago the applicant in these proceedings applied for Australian Citizenship. As at the date the present proceedings were commenced that application had not been dealt with. Pursuant to s14A of the Australian Citizenship Act 1948 (Cth) the Minister is entitled to defer consideration of the application for a period or periods not exceeding twelve months in total. Even if it be assumed that there was then allowed some short time thereafter for consideration, it is evident that by the time the present proceedings were commenced the Minister was substantially in default of the obligation imposed upon him to give consideration to the application for citizenship within a twelve month period or shortly thereafter. The day before the present proceedings were brought the Minister wrote to the applicant advising that consideration was being given to cancelling the visa which she

had obtained by operation of regs6 and 16 of the Migration Reform (Transitional Provisions) Regulations 1994 (Cth). The letter alleged that the applicant had completed a declaration for grant of resident status which included false and misleading statements in a material particular concerning her relationship with her spouse, Mr Gonzalez. The consequence of cancellation of a visa would clearly be that, subject to a legal argument which I shall mention in a moment, the application for citizenship would then fail. The legal argument is that because s14A of the Citizenship Act imposes upon the Minister an obligation not to defer consideration of the application longer than twelve months, at the expiration of that twelve month period automatically the applicant becomes an Australian Citizen. That is not an argument I am called upon to decide here, although it is far from clear to me how that result follows from the wording of the section. The Minister subsequently revoked the applicant's visa on 6 November. In consequence the applicant is no longer a permanent resident and is unable to meet the requirements of s13(1)(a). In the result, on 6 November 1995 the Minister wrote to the applicant refusing her application for citizenship.