Case: Leung v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (1997) 79 FCR 400
Outcome: discussed
The Authority submits that the approval of each active constituent by the entry pursuant to s 19(2)(a) of the Code in the Record of the relevant particulars was in law not an approval and could be ignored. The same is said of the registrations and the variations to the relevant particulars of registrations under s 20(2)(a) and s 29(1)(h)(i) respectively. This is so, it says, because subject to limited exceptions, a person will not be permitted to keep an advantage obtained by fraud: an administrative decision procured by fraud may be ignored as an invalid decision and of no effect at law. This is what the Authority has purported to do here. It has manifested its view that it may ignore the approvals in the Record and the registrations in the Register, which are each in electronic form, by deleting each of them. They no longer appear in the Record or the Register. It has not purported, as I have said, to cancel the approvals and registrations under the provisions of the Code. The Authority submits that the decision of the Full Court in Leung v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (1997) 79 FCR 400 is warrant for their actions. 31 The issue in Leung was whether the Minister for Immigration could, absent an express statutory power to do so, revoke the grant of a certificate of Australian citizenship where the applicants had misled his delegate about their factual circumstances. The appellants sought a certificate of Australian Citizenship, which involved two steps: the Minister must grant the Certificate and the applicant must make the prescribed pledge of commitment. The appellants made representations of fact, asserting that during their time spent overseas they were engaged in activities beneficial to the interests of Australia, namely the promotion and export of Australian goods (rough opals and fresh produce to Hong Kong). On the basis of these representations the Minister exercised his discretion under s 13(1) of the Australian Citizenship Act 1948 (Cth) in favour of the appellants. In fact, the applicant and his wife had both been practicing as medical professionals in Hong Kong for the better part of the time they initially claimed to have been promoting Australian exports. The Certificates were granted. However, before the appellants made their pledges of commitment, it was discovered that the representations of fact were false. The Minister's delegate then decided to 'revoke' the decision to grant the Certificates. 32 The Court was divided in its reasoning. The majority (Finkelstein J and Beaumont J concurring) concluded that as the decision to grant the certificate was procured by fraud it was invalid and could be ignored without any formal process of revocation. It was unnecessary, the majority concluded, to rely upon any express or implied power of revocation under the statute to proceed as it did. 33 Heerey J resolved the appeal on the basis of an implied statutory power to revoke a certificate of citizenship where a statutory criterion for the issue of the certificate did not in fact exist although such a power terminated once the pledge of commitment had been made because a person could not be deprived of citizenship other than by virtue of s 21 of the Citizenship Act . His Honour said: "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. 34 Finkelstein J however expressed the opinion that: ... 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. ... 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. 42 In Leung the question of fact and law as to whether Mr and Mrs Leung were entitled to the favourable exercise of the discretion under s 13(4)(b)(i) of the Citizenship Act was disputed. The dispute involved questions of fact. The Minister had not purported to rely upon the common law doctrine of vitiation by fraud but rather upon s 33(3) of the Acts Interpretation Act 1901 (Cth) as the source of power to revoke the certificate of citizenship. The AAT resolved the factual dispute in favour of the Minister. Finkelstein J observed that no point had been taken that the AAT lacked jurisdiction and proceeded on the basis that it did. Importantly however, when the matter was before the Full Court the factual controversy had been resolved. It was not in dispute by then that the decision to grant the certificate of citizenship had been procured by misrepresentation. The question was whether in those circumstances the decision to grant the certificate as a result of proven misrepresentation was thereby vitiated. 45 The concept of invalidity involves questions of mixed fact and law. There may be evidentiary considerations. In Leung, Finkelstein J, drawing on observations by Lord Hoffman in R v Wicks [1997] UKHL 21 ; [1998] AC 92 at 115, said at 413: 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 1594 the presumption is merely a tool in the process of reasoning to a decision. See also Wigmore on Evidence (1981) vol 9, par 2491.