Al-Ahmed and Minister for Home Affairs (Citizenship)
[2019] AATA 2707
•15 August 2019
Al-Ahmed and Minister for Home Affairs (Citizenship) [2019] AATA 2707 (15 August 2019)
Division:GENERAL DIVISION
File Number(s): 2019/2793
Re:Ahmed Al-Ahmed
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Member W Frost
Date of decision: 15 August 2019
Date of
written reasons: 19 August 2019
Place:Canberra
The application for review is dismissed pursuant to section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975.
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Member W Frost
Catchwords
PRACTICE AND PROCEDURE – citizenship – application to dismiss on basis of no reasonable prospect of success – where applicant has outstanding criminal charges – whether the Tribunal has the power to adjourn matter until criminal proceedings resolved – Tribunal satisfied that there is no reasonable prospect of success - application for review dismissed
PRACTICE AND PROCEDURE – request for referral of a question of law to the Federal Court – relevant considerations to exercise discretion – discretion not exercised
Legislation
Administrative Appeals Tribunal Act 1975, ss 40, 42B, 44 and 45
Australian Citizenship Act 2007, s 24
Cases
Agar v Hyde (2000) 201 CLR 552
Australian Tertiary Academy Pty Ltd and Australian Skills Quality Authority [2017] AATA 480
Filsell and Comcare [2009] AATA 90
Lesi v Administrative Appeals Tribunal and Another [2015] FCA 1186
Lower and Comcare [2003] AATA 540
Minister for Immigration and Citizenship v Hassani [2007] FCA 436
Omara and Minister for Home Affairs [2019] AATA 42
Paraponiaris and Secretary, Department of Employment (2015) 68 AAR 143
Re Davina and Defence Force Retirement and Death Benefits Authority (1996) 43 ALD 761
Re Williams and Australian Electoral Commission [1995] AATA 160
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Secondary Materials
Explanatory Memorandum to the Tribunals Amalgamation Bill 2014
REASONS FOR DECISION
Member W Frost
19 August 2019
INTRODUCTION
The Applicant, Mr Ahmed Al-Ahmed, applied to the Tribunal for review of a decision of the Respondent refusing his application for citizenship by conferral under the Australian Citizenship Act 2007 (Citizenship Act) because Mr Al-Ahmed has proceedings pending for alleged offences under Australian law.
The Respondent made an interlocutory application to the Tribunal to dismiss Mr Al‑Ahmed’s application for review pursuant to section 42B(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act), on the basis that the review application had no reasonable prospect of success because section 24(6) of the Citizenship Act compels the refusal of Mr Al-Ahmed’s citizenship application due to his pending criminal proceedings.
On 15 August 2019, the Tribunal held an interlocutory hearing regarding the Respondent’s dismissal application. At that hearing, the Tribunal dismissed Mr Al‑Ahmed’s application for review on the basis that it had no reasonable prospect of success. Mr Al-Ahmed subsequently requested written reasons for the Tribunal’s decision and those reasons are as follows.
ISSUE
The issues before the Tribunal were whether:
(a)the Tribunal can adjourn Mr Al-Ahmed’s application under review until such time as his pending criminal proceedings are finalised; and
(b)if not, and pursuant to the Respondent’s dismissal application, Mr Al-Ahmed’s review application should be dismissed because it has no reasonable prospect of success.
BACKGROUND
5. Mr Al-Ahmed arrived in Australia in 2006 and is a permanent resident.[1]
6. On 3 May 2017, Mr Al-Ahmed applied for Australian citizenship by conferral.[2]
7. On 11 September 2018, Mr Al-Ahmed was charged by New South Wales Police with two offences stated to be: ‘Goods in personal custody suspected being stolen (not m/v)’ and one offence stated to be: ‘Deal with property proceeds of crime => $10000’. The alleged offences are said to have occurred on 14 March 2018.[3]
8. By email dated 3 April 2019, New South Wales Police confirmed to the Respondent’s Department that Mr Al-Ahmed was charged with these offences on 11 September 2018 and that they were scheduled to be heard before the Queanbeyan Local Court on 20 August 2019.[4]
9. Following receipt of a letter from the Respondent’s Department inviting Mr Al-Ahmed to comment on this adverse information in relation to his citizenship application, Mr Al‑Ahmed confirmed by Statutory Declaration made on 15 April 2019 that he had been charged with the previously described offences, but that he denied the charges and would contest them at the Local Court hearing.[5]
10. On 2 May 2019, pursuant to section 24(6) of the Citizenship Act, a delegate of the Respondent refused Mr Al-Ahmed’s application for citizenship by conferral because of the pending proceedings in relation to the alleged offences.[6]
11. On 20 May 2019, Mr Al-Ahmed applied to the Tribunal for review of the delegate’s decision to refuse his application for Australian citizenship.[7]
12. On 8 July 2019, the Tribunal held a conference between the parties and a further conference was listed for 27 August 2019, being a date after the scheduled 20 August 2019 Local Court hearing of Mr Al-Ahmed’s pending criminal proceedings.
13. On 7 August 2019, the Respondent applied to the Tribunal for dismissal of Mr Al-Ahmed’s review application, pursuant to section 42B(1)(b) of the AAT Act, on the ground that it ‘has no reasonable prospect of success’.
LEGISLATION AND POLICY
[1] Documents in the bundle of documents lodged with the Tribunal by the Respondent pursuant to section 37 of the AAT Act numbered ‘T2’: Notification of refusal of an application for Australian citizenship by conferral with attachments; and ‘T4’: Application for Australian Citizenship by Conferral – General Eligibility 1300t (Electronic lodgement): Record of Responses.
[2] Document numbered T4: Application for Australian Citizenship by Conferral – General Eligibility 1300t (Electronic lodgement): Record of Responses.
[3] Document numbered T6: Email from NSW Police Liaison Unit to the Department of Home Affairs with attachment.
[4] Document numbered T6: Email from NSW Police Liaison Unit to the Department of Home Affairs with attachment.
[5] Document numbered T8: Email from the Applicant to the Department of Home Affairs with attachments.
[6] Document numbered T2: Notification of refusal of an application for Australian citizenship by conferral with attachments.
[7] Document numbered T1: Notice of Application for Review of Decision with attachments.
The Citizenship Act
Part 2 of the Citizenship Act sets out the manner in which a person can become an Australian citizen. Division 2 of Part 2 of the Citizenship Act provides for the acquisition of Australian citizenship by application and Subdivision B of that Division sets out the manner in which a person can be granted Australian citizenship by conferral. Section 21 in Subdivision B of the Citizenship Act provides as follows:
1A person may make an application to the Minister to become an Australian citizen.
Note 1: Subsections (2) to (8) deal with eligibility.
Note 2: Section 46 sets out application requirements (which may include the payment of a fee).
General eligibility
2A 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.
Pursuant to section 24(1) of the Citizenship Act, upon an application being made by a person for Australian citizenship by conferral under section 21, the Respondent must either approve or refuse to approve the person becoming an Australian citizen. The Respondent has no discretion in relation to the application; he must decide whether a person is or is not to be granted citizenship.
Section 24(6) of the Citizenship Act provides that the Minister ‘must not’ approve a citizenship application in certain circumstances. Relevantly for the proceeding before the Tribunal, section 24(6)(a) of the Citizenship Act states that the Respondent must not approve the person becoming an Australian citizen ‘at a time’:
When proceedings for an offence against an Australian law (including proceedings by way of appeal or review) are pending in relation to the person.
Citizenship Policy and Australian Citizenship Instructions
It is instructive for the purposes of determining the Respondent’s dismissal application and the time period covered by section 24(6)(a) of the Citizenship Act to note that Chapter 7 of the Citizenship Policy issued by the then Department of Immigration and Border Protection on 1 June 2016 states that:
Section 24(6)(a) covers the period from when a person is charged with an offence until either the prosecution drops the charges or the matter is finalised by the courts.
This includes where:
· an applicant has been charged and convicted of an offence, but sentencing has been deferred
· an appeal is underway or
· a party to the case has the option of appealing the decision.[8]
[8] Document numbered T3, pp. 46-70: Citizenship Policy, Chapter 7 (Citizenship by Conferral).
Additionally, Chapter 5 of the Australian Citizenship Instructions, regarding citizenship by conferral, mirrors the terms of the Citizenship Policy set out above in relation to the period of time covered by section 24(6) of the Citizenship Act.[9]
[9]Document numbered T3, pp. 71-109: Australian Citizenship Instructions, Chapter 5 (Citizenship by conferral).
The AAT Act
The Tribunal’s ability to adjourn a proceeding, is contained in section 40 of the AAT Act as follows:
1For the purposes of reviewing a decision, the Tribunal may:
…
(c) adjourn the proceeding from time to time.
The Tribunal’s power to dismiss an application is contained in section 42B(1) of the AAT Act, which provides that:
The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b)has no reasonable prospect of success; or
(c)is otherwise an abuse of the process of the Tribunal.
CONSIDERATION
Can the Tribunal adjourn the proceeding?
Having made an application to the Tribunal in May 2019 for review of the delegate’s decision, Mr Al-Ahmed subsequently sought the adjournment of that application to a time after the finalisation of his pending proceedings before the Queanbeyan Local Court.
In opposing this request, and in support of its dismissal application, the Respondent referred the Tribunal to two decisions of the Federal Court of Australia, being Minister for Immigration and Citizenship v Hassani [2007] FCA 436 (Hassani) and Lesi v Administrative Appeals Tribunal and Another [2015] FCA 1186 (Lesi).
In Hassani, Justice Besanko considered the previous Citizenship Act,[10] which, unlike the current Citizenship Act, contained a power under then section 14A allowing the relevant Minister to defer consideration of an application in certain circumstances, including where the applicant has been, or will be, charged with an offence.[11] In those circumstances, the Minister ‘may defer consideration of the application until the end of a period determined by the Minister’, but any such deferral must not be ‘for a period that exceeds, or for periods that in total exceed, 12 months’.[12]
[10] Australian Citizenship Act 1948.
[11] Section 14A(1)(b)(ii) of the Australian Citizenship Act 1948.
[12] Section 14A(1) and (2) of the Australian Citizenship Act 1948.
Relevantly for the purposes of the proceeding before the Tribunal, Justice Besanko in the Federal Court’s decision in Hassani said as follows:[13]
the general power to adjourn [in section 40(1) of the AAT Act] is affected by the provisions of the [Citizenship] Act. First, if an application is made to adjourn or defer an application for review on the ground that a charge is pending, it would be appropriate that the decision-maker proceed under s 14A rather than the general power to adjourn in s 40(1). Secondly, and in any event, I doubt that there would be grounds to adjourn because of a pending charge. I say that because the alternative to the granting of an adjournment would not be that the applicant for review would be required to compromise his or her right to silence before the hearing of the criminal charge. The effect of s 13(11)(a) of the Act [being the equivalent provision to section 24(6)(a) of the current Citizenship Act] is quite clear. The decision-maker must not grant a certificate of Australian citizenship to a person while proceedings for a relevant offence are pending in relation to that person. It is not clear what the Tribunal member meant when he said that s 13(11)(a) operated as a prohibition on the exercise of jurisdiction by the Tribunal on review. Certainly the Tribunal could not grant a certificate of Australian citizenship, but it could list the matter for hearing and find that the facts fall within s 13(11)(a) and that it cannot or should not exercise the power in s 14A and, having reached those conclusions, dismiss the application for review and affirm the decision of the delegate.
…
The exercise by the Tribunal of its general power to adjourn miscarried because it was not entitled to take into account the pending charge in considering whether to adjourn and, in any event, the Tribunal member misunderstood what would occur if the application was not adjourned. If not adjourned, then the application should have been listed and if the facts fell within s 13(11)(a) it should have been dismissed and the delegate's decision affirmed.
[13] Hassani at [35] and [37].
The subsequent Federal Court decision in Lesi considered the current Citizenship Act, which provides no power to the Respondent to defer an application, and Justice Besanko said:[14]
I think that this case is, in one sense, stronger than that in Hassani because there is in this case no express power to defer. It is true that the Tribunal’s general power to adjourn is unconfined in its terms, but it seems to me that there would need to be something in the [Citizenship] Act to suggest that the future occurrence of an event identified in s 24(6) of the Act was a relevant consideration in terms of the general power to adjourn. I can find nothing in the Act to that effect. I will follow my decision in Hassani.
[14] Lesi at [24].
Adopting the words of the Tribunal’s recent decision in Omara and Minister for Home Affairs [2019] AATA 42 (Omara), judicial authority is against Mr Al-Ahmed in relation to the requested adjournment of his application until his criminal proceedings are finalised. The Federal Court decision in Lesi was followed by the Tribunal in Omara and in two earlier Tribunal proceedings of Oliver[15] and Bobbe.[16] In Omara, the Tribunal said it ‘accepts that it has no capacity to take a different view’[17] to that propounded by the Federal Court in Lesi. The Tribunal in this proceeding also follows the Federal Court’s decision in Lesi.
[15] Oliver and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 895.
[16] Bobbe and Minister for Home Affairs (Citizenship) [2018] AATA 2894.
[17] Omara at [15].
Mr Al-Ahmed submitted by way of short written submissions received on the day of the interlocutory hearing that, if the Tribunal considered it was bound by the decision in Lesi, it should nonetheless refer the question of law to the Federal Court for decision, as the Tribunal has authority to do pursuant to section 45 of the AAT Act. Referrals of questions of law by the Tribunal to the Federal Court are infrequent. In Re Davina and Defence Force Retirement and Death Benefits Authority (1996) 43 ALD 761, it was said that the mere fact that the parties disagree over the law or that there have been differing interpretations by the Tribunal is not sufficient to warrant referral to the Court. It has also been said that it is not a proper basis to refer a question where the Tribunal considers a binding decision on the Tribunal is wrong.[18] In Lower and Comcare [2003] AATA 540, the Tribunal said there are two types of issues that may be worthy of referral, being an issue of ‘such complexity that it transcends the normal range of issues considered by the Tribunal’ and ‘questions that precede the existence of the Tribunal’s jurisdiction’ requiring it to make a determination of law or fact.[19]
[18] Re The Taxpayer and the Commissioner of Taxation [2006] AATA 429.
[19] Lower and Comcare [2003] AATA 540 at [30].
Having regard to the previously cited judicial and Tribunal authorities on the question of whether the Tribunal should adjourn the proceeding before it until Mr Al-Ahmed’s pending criminal proceedings are finalised, the Tribunal is not satisfied that the question of law arising in this proceeding warrants referral to the Federal Court. The judicial authorities are such that the Tribunal has no power to adjourn Mr Al-Ahmed’s proceeding due to his pending criminal proceedings. In this regard, the Tribunal is not entitled to take a pending charge into account in considering whether to adjourn a proceeding.
Additionally, as Justice Besanko said in Lesi, there is nothing in the Citizenship Act ‘to suggest that a future occurrence of an event identified in section 24(6) was a relevant consideration’ in relation to the Tribunal’s general power to adjourn. To this end, and noting Mr Al-Ahmed’s submission to consider the imminent hearing of these charges, although they were, at the time of the interlocutory hearing of the Respondent’s dismissal application, scheduled to be heard before the Local Court on 20 August (being 5 days from the date of the interlocutory hearing), the Tribunal cannot be satisfied that Mr Al-Ahmed’s criminal proceedings will be finalised on that date. For example, there may be a period in which a party could consider appealing any decision, there may then be an appeal hearing, or a future sentencing date. These scenarios may not all arise in Mr Al‑Ahmed’s pending proceedings, but the Citizenship Policy and the Australian Citizenship Instructions that a decision maker must have regard to in considering a citizenship application expressly state that the relevant section of the Citizenship Act covers such periods of time. Accordingly, the relevant period of time that attaches to the application of section 24(6) of the Citizenship Act is not likely to end on the date when the pending proceedings are due to be heard, being 20 August 2019. The proceeding before the Tribunal cannot be upheld indefinitely because of Mr Al‑Ahmed’s pending criminal proceedings.
In this proceeding there is clear judicial guidance regarding the particular question of law before the Tribunal in considering its decision. Moreover, if the Tribunal’s decision is wrong, it may be appealed to the Federal Court under section 44 of the AAT Act.
Should Mr Al-Ahmed’s application be dismissed?
In circumstances where the Tribunal has found that it cannot adjourn the proceeding before it while Mr Al-Ahmed’s pending criminal proceedings are finalised, the Tribunal must consider the Respondent’s dismissal application having regard to the current factual and legal situation. To this end, the Tribunal must consider ‘the facts and circumstances as they exist at the time it is making its decision’.[20]
[20] Shi v Migration Agents Registration Authority (2008) 235 CLR 286.
As the Tribunal said in Omara:[21]
There is no discretion in the matter. The law makes it clear that the Minister must not approve a citizenship application, if, at the time when the application decision was made, the applicant was subject to…such restrictions as are set out in the terms of the Citizenship Act.
[21] Omara at [6].
Having regard to the terms of section 24(6)(a) of the Citizenship Act, the Tribunal is satisfied that the delegate’s decision was correct. Because of that provision, the delegate had no discretion under the Citizenship Act and Mr Al-Ahmed’s application was correctly refused. Mr Al-Ahmed could not have been granted Australian citizenship at the time of the delegate’s decision on 2 May 2019 because he had pending proceedings for offences against Australian law. These criminal proceedings are still pending and the date of their finalisation is presently unknown.
As in Omara, here it is regretful that there was an almost two year delay in processing Mr Al-Ahmed’s citizenship application because, at the time of lodgment, he may have been qualified to be granted citizenship under section 21 of the Citizenship Act, although ‘in the absence of corroborative evidence the Tribunal cannot so conclude with absolute certainty’[22]; indeed it is merely speculative.
[22] Omara at [8].
Application of Tribunal’s dismissal power
The current form of section 42B(1) of the AAT Act commenced following amendments made by the Tribunals Amalgamation Act 2015. The power of the Tribunal to dismiss an application was expanded, including to circumstances where an application has no reasonable prospect of success. In this regard, the Explanatory Memorandum to the Tribunals Amalgamation Bill 2014 explained that:
This amendment would modernise the language of existing paragraph 42B(1)(a) and clarify the policy surrounding the grounds for dismissal. The proposed new grounds are similar to dismissal powers available to other bodies. For example Rule 26.01 of the Federal Court Rules 2011 allow for summary judgment on matters which have no reasonable prospect of success, or are an abuse of process. Similarly, section 47 of the Queensland Civil and Administrative Tribunal Act 2009 provides for dismissal of applications where the application is frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process. These powers would provide the Tribunal with greater power to dismiss unmeritorious matters early where appropriate.[23]
[23] Explanatory Memorandum to the Tribunals Amalgamation Bill 2014 at [552].
In Filsell and Comcare [2009] AATA 90, the Tribunal noted the following when setting out the principles that should be followed by the Tribunal in relation to applications for dismissal under the previous terms of section 42B of the AAT Act:
if proceedings have no reasonable prospect at all of success, they should be dismissed under s 42B, since it would be futile for the proceedings to continue, and inappropriate to use the time and resources of this tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing.[24]
[24] Filsell v Comcare (2009) 109 ALD 198 at [33] (Filsell), cited in Paraponiaris and Secretary, Department of Employment (2015) 68 AAR 143, [33] (Paraponiaris).
The Tribunal in Paraponiaris and Secretary, Department of Employment (2015) 68 AAR 143, considered the then new ‘no reasonable prospect of success’ ground for dismissal and stated that:
The exercise of the Tribunal’s power to dismiss proceedings under s 42B, being a power to dismiss a proceeding summarily, “must always be attended with caution” and “is not to be exercised lightly” (Spencer v Commonwealth (2010) CLR 118 at [24], [60]; see also Re Williams and Australian Electoral Commission [1995] AATA 160; (1995) 38 ALD 366 at 372), as ordinarily a party ought not be denied the opportunity to put their case and have it heard in the usual way; the expression “no reasonable prospect” prescribes a standard describing “a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to [hearing] in the ordinary way” (Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [57], cited with approval in Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at [46]).
The requirement that the Tribunal be satisfied that the application “has no reasonable prospect of success” necessarily involves a consideration of the merits in the sense that it requires a finding that the application lacks any prospect of success which can properly be said to meet the standard of being a reasonable one (see Duncan v Fayle [2004] FCA 723; (2004) 138 FCR 510 at [22] per French J). The Tribunal’s discretion to dismiss an application for review under s 42B(1) of the AAT Act is enlivened in circumstances where the Tribunal forms the view that the application, upon a practical judgment as to the expected ultimate outcome of the proceeding, suffers from the requisite deficiency described in s 42B(1)(b), which will depend upon the nature of the issues raised by the application, particularly whether the case involves resolution of issues of fact, law or both (Spencer at [25]-[26]).[25]
[25] Paraponiaris at [23] – [24].
In Australian Tertiary Academy Pty Ltd and Australian Skills Quality Authority [2017] AATA 480, the Tribunal said:
The power under s 42B is not exercised lightly. Its exercise denies the applicant the opportunity to put its case at a hearing where all of its evidence and submissions might be considered de novo. Where the application for dismissal relies on s 42B(1)(b), the Tribunal will need to be confident it can make any necessary findings of fact on the basis of the material before it that is not seriously contested. (It may not be necessary to make findings of fact in some circumstances: for example, where the applicant is unable to succeed as a matter of law.) It will also need to be confident that material which has not yet been adduced would not change the outcome. Ultimately, the Tribunal should be satisfied it is not appropriate to wait for a final hearing because there are no reasonable prospects of success.[26]
[26] Australian Tertiary Academy Pty Ltd and Australian Skills Quality Authority [2017] AATA 480 at [17].
The Tribunal has also recently stated that the exercise of the dismissal power under section 42B of the AAT Act does not require an application to be ‘hopeless’, ‘bound to fail’, or ‘meritless’.[27]
[27] Complete Training Institute Pty Ltd and Australian Skills Quality Authority [2018] AATA 4638 at [44].
Application to Mr Al-Ahmed’s proceeding
As judicial and Tribunal authorities have noted, the power to dismiss a proceeding before holding a substantive hearing is ‘not exercised lightly’[28]. However, based on the present facts and circumstances, the Tribunal has a ‘high degree of certainty about the ultimate outcome of the proceeding’[29] in relation to Mr Al-Ahmed’s application before the Tribunal.
[28] Paraponiaris at [23], citing Spencer v Commonwealth (2010) CLR 118 at [24], [60]; see also Re Williams and Australian Electoral Commission [1995] AATA 160; (1995) 38 ALD 366 at 372; and Australian Tertiary Academy Pty Ltd and Australian Skills Quality Authority [2017] AATA 480 at [17].
[29] Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [57], cited with approval in Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at [46].
This is not a matter where the Respondent or his delegate has any discretion. Because Mr Al-Ahmed has proceedings pending for offences under Australian law, his application for citizenship was rightly refused by a delegate of the Respondent. The Tribunal cannot ignore the effect of section 24(6)(a) of the Citizenship Act that compels the refusal of an application for citizenship on a person meeting the circumstances described in that provision; the Tribunal must apply that provision in considering Mr Al-Ahmed’s application for review. The facts in Mr Al-Ahmed’s proceeding before the Tribunal fall within the terms of section 24(6)(a) of the Citizenship Act, such that he cannot be granted Australian citizenship because of his pending criminal proceedings. As a matter of law, Mr Al‑Ahmed’s application cannot presently succeed and the Tribunal is not satisfied that it has any reasonable prospect of success given the uncertainty both about when Mr Al‑Ahmed’s pending criminal proceedings will be finalised and the outcome.
CONCLUSION
Pursuant to section 42B(1)(b) of the AAT Act, the Tribunal is satisfied that Mr Al-Ahmed’s application to the Tribunal for review of the Respondent’s decision to refuse his application for Australian citizenship has no reasonable prospect of success.
The Tribunal notes for completeness that there is no time period within which a person must wait after a refusal of an application for Australian citizenship before making a new application. Subject to the outcome of Mr Al-Ahmed’s pending criminal proceedings, he may make a new application for citizenship for consideration by the Respondent.
DECISION
The Tribunal, being satisfied that the application for review has no reasonable prospect of success, dismisses the application pursuant to section 42B(1)(b) of the AAT Act.
I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.
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Associate
Dated: 19 August 2019
Date(s) of hearing: 15 August 2019 Solicitors for the Applicant: Mr Sam Issa, Firestone Legal Solicitors for the Respondent: Mr Adam Ray, Clayton Utz
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