Ai and Minister for Immigration and Citizenship

[2008] AATA 877

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 877

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2978

GENERAL ADMINISTRATIVE DIVISION		)
Re		XIANG AI

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Senior Member M D Allen

Date25 September 2008

PlaceSydney

Decision For the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.

...................[Sgd]..........................

M D Allen
  Senior Member

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – citizenship – whether Applicant is a serious repeat offender – decision under review affirmed.

Australian Citizenship Act 2007- sections 3 and 24

REASONS FOR DECISION

25 September 2008 Senior Member M D Allen

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant and the Respondent of a copy of the decision that was in fact made, the Applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish to them a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.

3.      The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reason for the Tribunal’s decision. 

I certify that this and the preceding pages are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed:         ................[Sgd]....................
  Associate

Date of Hearing  25 September 2008
Date of Decision  25 September 2008
Appearance for the Applicant        Mr Ai, self-represented
Appearance for the Respondent    Mr O'Brien, DLA Phillips Fox

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MR ALLEN:   Very well, well what I will do now, I will give a decision and then if you are so inclined you know that you have rights of appeal to the Federal Court.  Very well.

By application made the third day of July 2008 the applicant sought review of a decision by a delegate of the Minister for Immigration and Citizenship to refuse his application for Australian citizenship.  The basis of the refusal is pursuant to paragraph 24(6)(d) of the Australian Citizenship Act 2007 which reads inter alia:

The Minister must not approve a person becoming an Australian citizen at a time 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.

The term “Serious prison sentence” is defined in section 3 of the Australian Citizenship Act as meaning a sentence of imprisonment for a period of at least 12 months.  “Serious repeat offender” is then defined as:

A person is a serious repeat offender in relation to a serious prison sentence if the sentence was imposed on the person for an offence committed by the person at a time after the person ceased to be confined in prison because of the imposition of another serious prison sentence.

In this matter the applicant has what can only be described as a series of offences commencing in 1996 and concluding in December 2006.  The relevant offences for the purposes of paragraph 24(6)(d) of the Australian Citizenship Act are first of all a sentence imposed by the Central Local Court, Sydney, New South Wales of 16 months imprisonment with a non parole period of 12 months on the 7^th day of July 2004.  That conviction and sentence was appealed to the District Court which upheld the appeal and imposed a new sentence with a head sentence of 12 months and a non parole period of six months.  Either way the offence is still a serious prison sentence in the terms of section 3 of the Australian Citizenship Act.

In December 2006 the applicant was convicted of making a false statement and sentenced at the Central Local Court to a period of 12 months imprisonment with a non parole period of 9 months.  Again he appealed to the District Court where the sentence was reduced to a head sentence of 12 months and a non parole period of six months but again the head sentence constitutes a serious prison sentence in the terms of the Australian Citizenship Act.  Quite clearly the two serious prison offences were imposed within a period of 10 years of each other.

It seems clear that under the mandatory provisions of subsection 24(6) of the Australian Citizenship Act the applicant cannot be granted Australian citizenship.  I would only mention that in these proceedings the applicant attempted to argue what might be termed character grounds and also produced material in mitigation of the offences for which he was convicted.  That material is irrelevant in that the terms of subsection 24(6) are mandatory and the applicant having been subjected to a serious prison sentence and rendering himself a serious repeat offender there is only one decision that can follow.

For these reasons therefore the decision under review is affirmed.  Thank you.

END OF EXTRACT  [11.01 am]