Agepati and Minister for Home Affairs (Citizenship) - [2019] AATA 5029

Agepati and Minister for Home Affairs (Citizenship) [2019] AATA 5029 (29 November 2019)
Division:GENERAL DIVISION
File Number: 2019/1386
Re:Mr Raghunandana Agepati
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Ms Anna Burke AO, Member
Date:29 November 2019
Place:Melbourne

The reviewable decision of the delegate of the Minister for Home Affairs made on 14 February 2019 to refuse Mr Agepati's application for Australian citizenship is affirmed.
...[sgd].....................................................................
Ms Anna Burke AO, Member
Catchwords
CITIZENSHIP - citizenship by conferral - refusal to approve application for citizenship - proceedings for an offence against Australian - adjourned undertakings - Tribunal must apply relevant law and circumstances in place at the time of review - decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Sentencing Act 1991 (Vic)
Cases
Omara and Minister for Home Affairs (Citizenship) [2019] AATA 42
Lesi v Administrative Appeals Tribunal (2015) 238 FCR 145
Oliver and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 895
Mahmoud and Anor and Minister for Immigration and Border Protection [2014] AATA 824
Secondary Materials
Department of Immigration and Border Protection, Citizenship Policy (1 June 2016)
REASONS FOR DECISION
Ms Anna Burke, AO Member
29 November 2019
INTRODUCTION

Mr Agepati (the Applicant) is appealing against the decision of a delegate of the Minister for Home Affairs, dated 4 February 2019, to refuse his application for Australian citizenship by conferral under section 24(6)(a) of the Australian Citizenship Act 2007 (the Act). Mr Agepati was notified of this decision in writing on 14 February 2019.
On 13 March 2019 Mr Agepati applied to the AAT for a review of the delegate’s decision, outlining why he considered the decision was wrong, stating:
The case offer has not sent me a copy of the decision record but I feel that I have made the following error in my character declaration in my citizenship application
Is the applicant aware of any proceedings pending against them from overseas or in Australia for an offence, including proceedings by way of appeal or review? No
Has the applicant been convicted of, or found guilty of, any offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any spent convictions)? No
I have answered no to the above questions but I had a pending intervention order which was given to me through an argument with my girlfriend. The intervention order was in place until the 30/4/2019. I misunderstood the question as I was not convicted for the offence and I believe I did not understand the question properly. I took advise from a migration agent to advise me that this could be the most possible reason for the decision. I would request AAT to request the Department of Home Affairs to get a copy of the decision record for refusal of my citizenship for me to have a look at the reasons why this decision was made.
The hearing was held on 4 November 2019. Mr Agepati was self-represented and Mr Tal Aviram, of Clayton Utz, appeared for the Respondent. The Tribunal was provided with documentation under section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). Mr Agepati provided numerous references, a bank receipt dated 17 December 2018 indicating payment of $1,000 to the court fund, evidence he had completed his Men’s Behaviour Change program and gave oral evidence at the hearing.
THE ISSUE IN CONTENTION
The issue in contention is whether Mr Agepati is prevented from becoming a citizen by conferral pursuant to section 24(6)(g) of the Act as he is currently subject to an adjourned undertaking pursuant to section 75 of the Sentencing Act 1991 (Vic) until 2 December 2019.
BACKGROUND
Mr Agepati is a 28-year-old Indian National who first arrived in Australia on 1 November 2012 as the holder of a Temporary Student Visa (subclass 572) and subsequently on 17 January 2017 was granted a Permanent Skilled Independent Visa (subclass 189).
On 24 January 2018 Mr Agepati applied for Australian citizenship by conferral.
On 2 July 2018 Mr Agepati appeared before the Magistrates Court of Melbourne where he pleaded guilty to two charges of unlawful assault. The court without conviction adjourned the matter until 2 December 2019 with undertaking starting on 2 July 2018. The undertakings in force are that Mr Agepati:
·must be of good behaviour during the time the undertaking is enforced;
·must appear at court before the adjourned date if required by the court;
·complete an accredited Men’s Behaviour Change program, providing confirmation of completion of the program by 30 March 2019; and
·pay $1000 to the court fund.
On 14 February 2019 Mr Agepati was notified that a delegate of the Minister refused his application for Australian citizenship by conferral, as the delegate was prohibited from approving the application under section 24(6)(a) of the Act, because Mr Agepati had outstanding proceedings for offences against an Australian law at the time of his application.
On 26 July 2019 the Respondent on behalf the Minister requested the Tribunal dismiss the application in accordance with section 42B(1)(b) of the AAT Act as the application had no real prospects of success. At the same time, the Applicant sought an adjournment of the hearing and to have the matter listed after 3 December 2019, at the expiry of his adjourned undertaking.
On 9 September 2019 the Tribunal refused the Respondent’s application to dismiss the matter and refused to grant an adjournment to Mr Agepati. The Tribunal provided oral reasons at the hearing indicating that the timing of the matter could very well determine Mr Agepati’s prospects of success, as conceded by the Respondent. The Respondent had contended that the prohibition in section 24(6)(g) may no longer apply after 2 December 2019. The Tribunal also determined it would not be reasonable in all the circumstances to grant an adjournment to allow for the expiry of the adjourned undertaking period, relying upon the decision of Besanko J in Lesi v Administrative Appeals Tribunal[1] where his Honour found:
That means that the time periods within which applications will be determined will vary, but that is quite a different thing from the exercise of an express power to defer. I do not think the Minister has the power to postpone consideration of an application merely on the ground that a bar in paragraph 24(6)(g) will expire in the future.
[1] (2015) 238 FCR 145.
Relevant Legislation
Section 21(2) of the Act sets out the general eligibility criteria for a person to become an Australian citizen:
General eligibility
A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister’s decision on the application.
Section 24(6) of the Act provides the Minister must not approve the person becoming an Australian citizen at a time:
(a) when proceedings for an offence against an Australian law (including proceedings by way of appeal or review) are pending in relation to the person; or
(b) when the person is confined to a prison in Australia; or
(c) during the period of 2 years after the end of any period during which the person has been confined to a prison in Australia because of the imposition on the person of a serious prison sentence; or
(d) if the person is a serious repeat offender in relation to a serious prison sentence--during the period of 10 years after the end of any period during which the person has been confined to a prison in Australia because of the imposition of that sentence; or
(e) if the person has been released from serving the whole or a part of a sentence of imprisonment on parole or licence--during any period during which action can be taken under an Australian law to require the person to serve the whole or a part of that sentence; or
(f) if the person:
(i)has been released by a court from serving the whole or a part of a sentence of imprisonment; and
(ii)has been so released because the person gave a security, with or without sureties, by recognizance or otherwise, that the person will comply with conditions relating to the person's behaviour;
during any period during which action can be taken against the person under an Australian law because of a breach of a condition of that security; or
(g) if, in respect of proceedings for an offence against an Australian law in relation to the person:
(i)a court does not impose a sentence of imprisonment on the person; and
(ii)the court releases the person because the person gives a security, with or without sureties, by recognizance or otherwise, that the person will comply with conditions relating to the person's behaviour;
Section 75 of the Victorian Sentencing Act provides for release on adjournment without conviction:
(1)     A court, on being satisfied that a person is guilty of an offence, may (without recording a conviction) adjourn the proceeding for a period of up to 60 months and release the offender on the offender giving an undertaking with conditions attached.
(2)     An undertaking under subsection (1) must have as conditions—
(a)     that the offender attends before the court if called on to do so during the period of the adjournment and, if the court so specifies, at the time to which the further hearing is adjourned; and
(b)     that the offender is of good behaviour during the period of the adjournment; and
(c)     that the offender observes any special conditions imposed by the court and may include a condition requiring the offender to make a payment to an organisation that provides a charitable or community service or to the court for payment to such an organisation.
(3)     Subject to Division 2 of Part 3BA, a court may attach a justice plan condition that the offender participate in the services specified in a justice plan for a period of up to 2 years specified by the court or the period of the adjournment, whichever is the shorter.
(4)     An offender who has given an undertaking under subsection (1) may be called on to attend before the court—
(a)     by order of the court; or
(b)     by notice issued by the proper officer of the court.
(5)     An order or notice under subsection (4) must be served on the offender not less than 4 days before the time specified in it for the attendance.
(6)     If at the time to which the further hearing of a proceeding is adjourned the court is satisfied that the offender has observed the conditions of the undertaking, it must dismiss the charge without any further hearing of the proceeding.
EVIDENCE
The following table has been derived from Mr Agepati’s records as outlined in an Australian Criminal Intelligence Commission report dated 12 January 2019:

Court
Date Nature of Offence Sentence

Melbourne Magistrates Court

2 July 2018

Unlawful Assault (2 charges)

Without Conviction.
Adjourned to 02/12/2019
To pay $1000.00 to the Court Fund

A Victorian police summary report from the LEAP database dated 25 April 2018 provides the following case progress narrative:
The RESP and AFM have been in a de facto relationship for two years. Both of them have stated that this is the first instance of violence between them. Police were at Spice Market for an unrelated matter when S/C Gracie heard a gasp from the crowd and OBS the AFM on the ground and the RESP being restrained by security. Security advised he had pushed the AFM to the ground. AFM too drunk to give a statement at the time but was cooperative with police. Nil injuries and stated she is not in fear of him. The incident is captured on CCTV from a distance. Witness details obtained.
AFM wanted to go out with her friends and RESP. However, at the venue AFM was nowhere to be found and left RESP with her other friends. RESP got frustrated and couldn’t find her in the venue and decided to leave. When he went to exit he located the AFM smoking with her ex-boyfriend. AFM approached RESP and attempted to hug him to explain, and he pushed her away, causing the AFM to fall to the ground.
AFM has stated she is not in fear, but she doesn’t understand why she was pushed. She stated this is the first time he’s ever been violent, and there was no argument in the lead up so she was taken by surprise. AFM was very intoxicated. Both parties want to continue the relationship
RESP states he did not intend to hurt the AFM; merely to get away from her. He did not mean for her to fall to the ground; admits it looks bad but believes she fell due to her level of intoxication.
RESP has been in Australia for over five years and is currently in the process of getting Australian citizenship.
A Commonwealth Bank of Australia receipt dated 17 December 2018 indicating payment of $1000 to court services Victoria.
Mr Wol Zala, Family Violence Men’s Behavioural Change Facilitator/Counsellor at Star Health provided a statement dated 13 February 2019:
After Mr Agepati completed an initial assessment interview on 22-08-2018 it was deemed appropriate that he participate in a program consisting of 20 Men’s Behaviour Change Group sessions. Mr Agepati began the group sessions on 26-09-2018 and has participated in 18 of the required 20 sessions and has therefore completed the program.
In his oral evidence, Mr Agepati advised the Tribunal that this charge related to an altercation with his ex-girlfriend at a nightclub. He said he had gone to the nightclub with his ex-girlfriend and a bunch of her friends. He said he did not have a great night as he had spent the evening trying to find his then girlfriend, and when he eventually found her she was chatting with her ex-boyfriend; he said he was very disappointed. He told the tribunal he simply wanted to walk away but she kept trying to speak to him – he told her to get away and pushed her. He indicated he thought she had fallen as she was in high heels and had lost her balance. He stated thankfully she was not injured, but the incident had been witnessed by police who were at the nightclub for other reasons. He stated the incident had caught the eye of the female officer and she had decided to follow it up. He said he went to the Melbourne Magistrates Court and made submissions. He said he made submissions on his character, his ex-girlfriend also gave a letter of support, and that the court had recorded no conviction and placed him on a good behaviour bond. He indicated to the Tribunal that the decision had already been made, and he had served 98 per cent of the bond without contravention, completed the behavioural management course and paid his fine to the court.
Mr Agepati stated that he and his ex-girlfriend had separated and subsequently he has married a family friend. He stated that his wife was in Australia on a visa without work rights, and therefore it was very important to him to gain his citizenship and not to be rejected because of this one incident.
Mr Agepati advised the Tribunal that the rejection of his citizenship had impacted him greatly, so much so that he was seeking psychological assistance through a work provided program. He believes he has missed out on promotions because of his lack of citizenship and he thinks he has been punished enough. Mr Agepati emphasised the whole situation was causing arguments between himself and his wife, that he had invested a lot of time, money and energy in the process, and stressed he was a person of good character.
CONSIDERATION
Mr Aviram contended that as Mr Agepati is subject to an adjourned undertaking with conditions relating to behaviour for a period of 17 months from 2 July 2018 to 2 December 2019, section 24(6)(g) of the Act prohibits the Minister from approving his citizenship at this time.
Mr Aviram argued that if Mr Agepati breached the conditions of his adjourned undertaking he could be charged with a contravention, and if found guilty the court had the jurisdiction to resentence Mr Agepati.
Mr Aviram drew the Tribunal’s attention to numerous cases where the Tribunal had accepted that good behaviour bonds and equivalent orders fell within the purview of section 24(6)(g) of the Act. In particular, referring to the matters of Oliver and Mahmoud:
(a) where first Deputy President J W Constance stated:[2]
Provided no further action is taken against Mr Oliver in accordance with the condition of the bond, it will expire on 20 November 2016. Until that time action can be taken against him and, in accordance with section 24 of the Citizenship Act, he must not be approved to become an Australian citizen.
(b) and then Professor Ron McCallum AO, Member stated:[3]
On 21 May 2014, a few days before the expiration of the good behaviour bond, a delegate of the Respondent decided not to grant the applicant citizenship by virtue of s 24(6)(g) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act). Put simply, s 24(6)(g) provides that the Respondent must not grant citizenship to a person while that person is under a good behaviour bond, even where no conviction has been recorded. In other words, the Applicant could not be granted citizenship until 27 May 2014, after the expiration of the good behaviour bond.
[2] Oliver and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 895.
[3] Mahmoud and Anor and Minister for Immigration and Border Protection [2014] AATA 824.
Mr Aviram contended that the Tribunal did not have power to postpone consideration of the Applicant’s application for Australian citizenship merely on the ground that a bar in section 24(6)(g) will expire in the near future, drawing the Tribunal’s attention to the determination of Besanko J in Lesi v Administrative Appeals Tribunal:
As I understand it, there is no restriction under the Act on the applicant making another application for citizenship after January 2016. I think the removal of an express power to defer, albeit subject to a time limit, points in the opposite direction to that advanced by the applicant. In other words, it suggests to me that the Minister does not have power to defer consideration of an application. It is true that there is no time limit on the Minister’s consideration of the matter and the complexities in the administrative steps and the information gathering process will vary from case to case. That means that the time periods within which applications will be determined will vary, but that is quite a different thing from the exercise of an express power to defer. I do not think the Minister has the power to postpone consideration of an application merely on the ground that a bar in paragraph 24(6)(g) will expire in the future.
Mr Aviram argued that the Tribunal could not defer its determination of this matter until after 2 December 2019 at which time the prohibition in section 24(6)(g) may no longer exist, subject to Mr Agepati compliance with his adjourned undertakings. Mr Aviram cited the decision of Senior Member Chris Puplick AM in Omara and Minister for Home Affairs where he stated:[4]
[4] Omara and Minister for Home Affairs (Citizenship) [2019] AATA 42.
This is not a matter where the Minister has any discretion. As the Applicant is subject to a bond, his application must be refused. The Tribunal stands in the shoes of the decision maker in such appeals but it has no more powers available to it than those available to the original decision-maker.
Thus it cannot ignore the provisions of s 24(6) (h) and must reject the citizenship application.
It may be argued that had the decision been made at some time between 6 December 2016 and 12 April 2018 then the Applicant might have been successful. As the Tribunal has said, this is speculative only.
What this does raise however, is whether or not, in some sort of sense of fairness or equity the Applicant should be allowed to pursue his current application and somehow put it “on hold” until after 13 April 2019 which is less than three months away.
Unfortunately for the Applicant, judicial authority on this point is against him. In Lesi the court stated:
“I do not think that the Minister has power to postpone consideration of an application merely on the ground that a bar in paragraph 24(6)(g) will expire in the future.”
This decision was recently followed in the cases of Oliver and Bobbe and this Tribunal accepts that it has no capacity to take a different view.

Mr Agepati argued that he was at a distinct disadvantage in this matter as the migration agent he had engaged had failed to appear at his conciliation conference and he was left without legal representation. He argued that he had not been given the opportunity to argue his case in respect of the impact of the refusal to grant citizenship, to speak to his character references or to fully explain the situation which had resulted in his appearance before the Magistrates Court. Mr Agepati believed he was a person of good character who had come to Australia, studied hard, completed his Masters, worked his way up in his profession, now had a stable full-time job within information technology, was married and lived a decent hard-working life.
Mr Aviram argued that a finding against Mr Agepati in this matter would not prohibit him from making another application for Australian citizenship at any time and his citizenship application had no bearing on his wife’s visa process or status.
Mr Aviram argued that the situation was unfortunate, but fundamentally there was no use in exploring issues in relation to the matter as the Act clearly prohibited the Minister from conferring citizenship at this time. Essentially, until 2 December Mr Agepati had obligations to the court and action could still be taken against him until that time.
Mr Aviram contended that fundamentally there was no requirement for the Tribunal to consider Mr Agepati’s character by traversing his actual offending, as the only course open to the Tribunal was to affirm the delegate’s determination at this time as the Act prohibited conferral of his citizenship.
Mr Aviram stressed the Tribunal should dismiss the application or affirm the decision of the delegate as a matter of urgency, as to further defer its decision was not an appropriate exercise of the Tribunal’s powers, as outlined in paragraphs 21 to 25 above.

Whilst this may appear to be a straight forward matter in respect of the application of section 24(6) of the Act (where the Minister is prohibited from granting citizenship to Mr Agepati as he is subject to an adjourned undertaking until 2 December 2019) there is nothing simple about it, or its implications for Mr Agepati. As the case of Mahmoud demonstrates, timing is everything. In that matter, the Member set aside the delegate’s decision, and found the Applicant to be of good character. Similar to Mr Agepati’s situation, in Mahmoud, the Applicant’s application for citizenship was rejected on the basis of section 24(6), as at the time of her application she was still subject to a good behaviour bond. However, by the time the matter reached the Tribunal: [it] was was almost seventeen months after the proceedings before the … Court, and almost five months since the expiration of the good behaviour bond.
At the time of the hearing, Mr Agepati was a month away from the expiry of his adjourned undertaking. Had the matter been heard after 2 December 2019, the Tribunal estimates that the prohibition would not have applied, as it finds Mr Agepati a credible witness and accepts his assertion that he had not and would not breach his adjourned undertakings. However, this is mere speculation and not a basis for making a correct or preferable decision. Further, as outlined above, it is not appropriate for the Tribunal to adjourn a matter or defer making a decision until a time beneficial to either an applicant or respondent.
The Tribunal has found that at the time of application for citizenship and at the time of hearing, Mr Agepati was subject to an adjourned undertaking. As such, in accordance with section 24(6)(g) of the Act, the Minister must not approve him becoming an Australian citizen. There is no discretion open to the Minister in respect of the Act. Likewise, there is no discretion for the Tribunal standing in the shoes of the decision maker to make an alternative decision.
The Tribunal has found that Mr Agepati’s application for citizenship cannot be approved at this time in accordance with section 24(6)(g), and therefore affirms the delegate’s decision that is under review.
The Tribunal is aware that this decision will cause considerable distress to Mr Agepati and his family. This decision should not be read as implying that Mr Agepati is not of good character. The Tribunal would encourage Mr Agepati to reapply for his citizenship at any time after 2 December 2019 as nothing in this determination precludes him from making a further application for citizenship by conferral.
DECISION
The reviewable decision of the delegate of the Minister for Home Affairs made 14 February 2019 to refuse Mr Agepati's application for Australian citizenship is affirmed.

I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision of Ms Anna Burke AO, Member

...[sgd].............................................................
Associate
Dated 29 November 2019

Date of hearing 4 November 2019

Applicant In person

Advocate for the Respondent

Solicitors for the Respondent

Mr Tal Aviram

Clayton Utz

Court	Date	Nature of Offence	Sentence
Melbourne Magistrates Court	2 July 2018	Unlawful Assault (2 charges)	Without Conviction. Adjourned to 02/12/2019 To pay $1000.00 to the Court Fund