Lumumba v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)

FEDERAL COURT OF AUSTRALIA

Lumumba v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2022] FCA 1523

ORDERS

THE COURT DECLARES THAT:

1. Regulation 7C of the Australian Citizenship Regulations 1960 (Cth) is invalid.

THE COURT ORDERS THAT:

2. The time in which the application for judicial review may be brought be extended to 16 May 2022.

3. The decision made on 12 October 2005, purportedly under reg 7C of the Australian Citizenship Regulations 1960 (Cth) to cancel the registration of the applicant as an Australian citizen, be set aside, with effect from 12 October 2005.

4. The first respondent pay the applicant’s costs of the proceeding, to be fixed by way of an agreed lump sum or, in default of agreement, by way of a single lump sum fixed by a Registrar.

AND THE COURT DIRECTS THAT:

5. The Court’s Registry place copies of each of the affidavits of Laura Groves dated 4 May 2022 and 22 July 2022, amended to reflect the rulings set out in the Court’s reasons dated 16 December 2022, on the Court’s electronic file.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER J:

1 The applicant has applied to the Court for review of a decision of the first respondent (the Minister for Immigration, Citizenship and Multicultural Affairs). The decision is described as a decision to cancel the registration of the applicant’s Australian citizenship by descent. The applicant seeks orders extending the time in which he might make the application (if such orders are required), orders setting aside the Minister’s decision, and orders for his release from immigration detention. He also seeks an order for the respondents to pay his costs.

2 The applicant has brought this proceeding pursuant to both the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1901 (Cth).

3 For the reasons set out below, the judicial review challenge succeeds, and there will be orders accordingly. However, there is no present basis, on the evidence before the Court, for the applicant to be released from immigration detention.

EVIDENCE

4 At the hearing in this proceeding on 5 August 2022:

(a) the applicant read the following affidavits:

(i) an affidavit of Catherine Holbeche dated 3 May 2022;

(ii) an affidavit of Ms Holbeche dated 4 May 2022;

(iii) an affidavit of Ms Holbeche dated 12 May 2022;

(iv) an affidavit of Ms Holbeche dated 26 July 2022; and

(v) an affidavit of Ms Holbeche dated 3 August 2022; and

(b) the Minister read the following affidavits:

(i) an affidavit of Laura Groves dated 4 May 2022; and

(ii) an affidavit of Ms Groves dated 22 July 2022.

5 At the hearing, the Minister objected to certain passages in the affidavits of Ms Holbeche, on the basis that those passages contained inadmissible hearsay. The Court upheld the objection and ruled that the statements by Ms Holbeche, deposing to instructions received or information and belief based on what the applicant has told her, was not admissible. The parties were instructed to confer and jointly mark-up and re-file the affidavits in line with that ruling. The Court instructed the Minister to do the same in relation to the affidavits of Ms Groves. The Court also ruled that the affidavit of Ms Holbeche dated 4 May 2022 was not admissible, again because the substantive parts of that affidavit comprised inadmissible hearsay.

6 The annexures to affidavits filed in the proceeding contained significant duplication. After the hearing, at the request of the Court, the Minister filed on 2 November 2022 an agreed tender bundle that collated all annexures to affidavits filed in the proceeding, without duplicated annexures. A covering note for that tender bundle sent to Chambers by the Minister on 28 October 2022, which has been uploaded to the Court’s electronic file, contains a list of duplicated annexures that have been removed from that tender bundle.

7 The applicant filed amended versions of the affidavits read by the applicant on 4 and 7 November 2022. The parties did not agree as to the application of the Court’s ruling to the affidavits read by the Minister, and the parties sent to the Court on 27 October 2022 a joint document indicating their positions regarding the application of the Court’s ruling to certain parts of the affidavits read by the Minister. The parties were notified the following day, by email, that the Court would rule on the matters contained in that joint document as part of its final reasons. I set out these rulings directly below.

8 As to the affidavit of Ms Groves dated 4 May 2022:

(a) The applicant contends that the first two sentences of [21] are inadmissible hearsay. In those two sentences Ms Groves deposes to the applicant being refused a bridging visa, and the bridging visa being later granted following an appeal to the Administrative Appeals Tribunal. The Minister contended that the relevant passages were not contentious and would assist the Court. In response, the applicant contended that “[t]o assert something is not contentious is not a proper response to a hearsay objection”.

(i) In my opinion this objection should be overruled. Although the Minister did not put this argument, it is clear from [21] that Ms Groves is giving evidence based on departmental records. She attaches a screenshot from those records. The paragraph and the exhibit are admissible pursuant to s 69 of the Evidence Act 1995 (Cth).

(b) The applicant contends that the whole of [24] is inadmissible hearsay. In that paragraph, Ms Groves deposes to being instructed by officers of the Department of Home Affairs that the applicant did not seek review of the decision to refuse to grant him a protection visa. The parties make the same argument as for [21], referred to above, although the applicant adds that the contents are contentious if any inference about acquiescence is to be drawn from them.

(i) This objection should also be overruled. The evidence is based on departmental records.

(c) The applicant objects to the whole of [28]-[29] on the basis of relevance, citing the transcript at p 13, ll 20-37. At [28]-[31], Ms Groves deposes to matters involving DNA testing and detainee requests, and to information received from her client as to DNA testing. The Minister contended that this was “[n]ot the basis on which this process was permitted and is relevant to the issue raised at paragraph 12 of the Minister’s submissions of 26 August 2022”.

(i) This objection is upheld. Evidence about possible DNA testing processes in the future is irrelevant to the matters before the Court. While it is true that at various points the Court has been informed about these processes being the subject of discussion between the parties, this information was relevant at those points only for the purposes of case management. Facts about the progress, or lack of progress, towards DNA testing are not relevant to the issues the Court must now decide.

9 As to the affidavit of Ms Groves dated 22 July 2022:

(a) The applicant objects to the whole of [5]-[6] on the basis of relevance, citing the transcript at p 13, ll 20-37. In these paragraphs, Ms Groves deposes to her understanding based on conversations with the applicant’s solicitor as to DNA testing. In response, the Minister made the same contention as that quoted at [8(c)] above.

(b) The applicant also objects to the whole of annexure LG4 on the basis of relevance, citing the transcript at p 13, ll 20-37. Annexure LG4 is described as a chain of emails relating to information to which Ms Groves deposes in [5] of this affidavit, referred to at [8(a)] above. In response, the Minister made the same contention as that extracted at [8(c)] above.

(i) These objections should be upheld for the reasons I have given above at [8].

10 The Court’s Registry will be directed to place a version of the two affidavits reflecting these rulings on the Court’s electronic file.

RELEVANT FACTS

11 In this section I make findings of fact based on the evidence which forms part of the narrative to the point of trial. Where findings of fact need to be made in resolving the grounds of review, I do that in the resolution section of these reasons.

12 The applicant was born in the Democratic Republic of the Congo in 1989. He lived in the DRC until the age of seven, when he went to Ghana. A form 118 (‘Application for Registration of Australian Citizenship by Descent’) dated 20 July 2004, in evidence before the Court as part of the applicant’s departmental file, records that the applicant’s natural mother was not an Australian citizen at the time of the applicant’s birth. It also records that the applicant’s natural father was an Australian citizen at the time of the applicant’s birth. It is not disputed that the individual recorded as the “natural father” of the applicant on this form 118 was, at the relevant time, an Australian citizen. For convenience, I have referred in these reasons to the person recorded as the applicant’s “natural father” in the form 118 as ‘Mr L’.

13 The applicant was registered as an Australian citizen on 27 July 2004.

14 The departmental file indicates that, in July 2005, departmental officers had commenced investigating whether there were any discrepancies or inconsistencies arising from the fact that by 2005 Mr L had registered six children as Australian citizens by descent on the grounds that he was their father. Among these children were the applicant, as well as a child described in correspondence on the departmental file as the applicant’s twin sister.

15 The departmental file indicates that after a month or two of investigations until August 2005 the Department formed a view that the applicant’s citizen...