Al-Azooz and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2021] AATA 3017

Al-Azooz and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3017 (23 August 2021)

Division:GENERAL DIVISION

File Number(s):      2021/3385

Re:Laith Sami Aziz Al-Azooz

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:23 August 2021

Date of written reasons:        23 August 2021

Place:Sydney

The application for dismissal is granted.

...............................[sgd]......................................

Chris Puplick AM, Senior Member

CATCHWORDS

CITIZENSHIP – citizenship by conferral – dismissal application – whether the application for review had reasonable prospects of success – prohibition on granting citizenship where applicant is subject to a conditional release order – dismissal application granted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 42B

Crimes (Sentencing Procedure) Act 1999 (NSW) s 9

REASONS FOR DECISION

Chris Puplick AM, Senior Member

23 August 2021

1. This matter was heard on 23 August 2021 with all parties appearing by telephone in accordance with the Tribunal’s COVID-19 protocols. At the end of the interlocutory hearing a decision dismissing the matter under paragraph 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) was given orally. The reasons for that decision are set out as follows.

   STATEMENT OF REASONS

2. On 5 October 2020 Mr Laith Sami Aziz Al-Azooz (the Applicant) made an application for Australian citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (the Act). The Applicant first arrived in Australia on October 2016 as the holder of a Global Special Humanitarian Visa (subclass 202). He is a citizen of Iraq.

3. While consideration of his application was still pending, on 23 March 2021, the Applicant was convicted in the Local Court of New South Wales (Fairfield) of an offence of driving a motor vehicle while his drivers’ license was suspended.

4. This was apparently the Applicant’s first offence and the Presiding Magistrate found him guilty. Without proceeding to conviction, the Magistrate imposed upon him a Conditional Release Order pursuant to paragraph 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

5. That Conditional Release Order commenced on 23 March 2021 for a period of 12 months and hence expires on 22 March 2022.

6. On 25 May 2021 the Minister’s delegate refused the Applicant’s application on the basis that the Applicant could not be granted citizenship by virtue of the explicit prohibition contained in paragraph 24(6)(g) of the Act.

7. Section 24(6)(g) of the Act provides that

   (6)  The Minister must not approve the person becoming an Australian citizen at a time:

   …

   (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;

   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;

8. This means that because the Applicant is subject to action which could be taken against him should he breach the terms of the Conditional Release Order; the Minister is prohibited (“must not”) by the Act from granting the Applicant citizenship.

9. The Minister has applied to the Tribunal under paragraph 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) for the application in question to be dismissed. That section provides (emphasis added):

   42B  Power of Tribunal if a proceeding is frivolous, vexatious etc.

   (1)  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.

10. Since the Applicant’s application must fail because of the provisions of paragraph 24(6)(g) of the Act, it is appropriate for the Tribunal to grant the Minister’s application.

11. The Tribunal notes however, that this dismissal does not preclude the Applicant from lodging a fresh application for citizenship after 22 March 2022 when it would be assessed on the basis of the Applicant’s position at that time.

12. The Tribunal has also noted the details of the circumstances in which the offence in question took place and appreciates that the Applicant felt that a family medical emergency caused him to act in way which is generally out of character for him as a law-abiding person involved in full-time employment and postgraduate academic studies.

13. All of these matters can be taken into account in the event of the Applicant lodging a fresh citizenship application after 22 March 2022.

    DECISION

14. The application for dismissal is granted.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

....................................[sgd]....................................

Associate

Dated: 23 August 2021

Date(s) of hearing:	23 August 2021
Applicant:	In person
Solicitors for the Respondent:	Ms C Saunders, Minter Ellison