Federal Court (Full Court). Is "unwarrantable delay" a "basis upon which, in particular circumstances, any of the remedies sought by the Appellant under s 39B of the Judiciary Act might, in the exercise of a judicial discretion, be refused, in the same way in which the remedies for which s 75(v) of the Constitution provides might be refused"? May a relevant Minister "be taken to have read [a] departmental submission, especially in circumstances where he approved it, wrote brief notes upon it, and signed it"?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Is "unwarrantable delay" a "basis upon which, in particular circumstances, any of the remedies sought by the Appellant under s 39B of the Judiciary Act might, in the exercise of a judicial discretion, be refused, in the same way in which the remedies for which s 75(v) of the Constitution provides might be refused"?
Question 2: Can it be said that "the inability to test hearsay evidence may render evidence “unfairly prejudicial” and be a sufficient basis to make an order under s 136 of the [Evidence Act 1995 (Cth)] limiting its use"?
Question 3: May a relevant Minister "be taken to have read [a] departmental submission, especially in circumstances where he approved it, wrote brief notes upon it, and signed it"?
Question 4: Section 34(3) of the Citizenship Act 2007 (Cth) provided that "the Minister must not decide under subsection (2) to revoke a person's Australian citizenship if ... the Minister is satisfied that the person would, if the Minister were to revoke the person's Australian citizenship, become a person who is not a national or citizen of any country". The Appellant was on notice since on or around 28 May 2007 that the Minister was considering revocation of his citizenship under s 34(2). Through a letter of his solicitors dates 22 August 2007, the Appellant indicated to the Minister that he was "in the process of … obtaining legal advice from the Ukraine in relation to the current status of his Ukrainian nationality", pursuant to s 34(3). In these circumstances, was the Minister "required to defer making a decision on account of the possibility that further advice might be forthcoming from the Appellant’s solicitors"?
The FCAFC answered those questions as follows: