Alkiswani and Minister for Immigration and Multicultural and Indi Genous Affairs
[2003] AATA 1195
•26 November 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1195
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/717
GENERAL ADMINISTRATIVE DIVISION ) Re AYMAN ALKISWANI Applicant
And
MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President Don Muller Date26 November 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review to revoke the approval for the grant of a certificate of Australian citizenship to Ayman Alkiswani. ................SIGNED..............................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
CITIZENSHIP – implied power to revoke approval for grant of Australian citizenship – crime committed after approval – applicant confined in a psychiatric institution
Australian Citizenship Act 1948: ss13, 14B, 15, 21, 50
Acts Interpretation Act 1901: s.33(3)
REASONS FOR DECISION
Deputy President Don Muller 1. Ayman Alkiswani wants to become an Australian citizen. His application for grant of certificate of Australian citizenship was approved on 30 October 2001 and he was due to make the pledge of commitment at a public citizenship ceremony on 14 March 2002. However, on 7 March 2002 he had an altercation with a person who was preaching religion in a street near his house. He went to his house, obtained some inflammable liquid, went back to the preacher, poured the liquid on the preacher’s head and set him on fire.
2. On 9 March 2002, a delegate of the Respondent saw a news item about the incident and then on 11 March 2002, obtained a report from the Queensland Police Service. On that same day the Respondent withdrew the invitation to Mr. Alkiswani to attend the Citizenship ceremony and deferred the matter until the police investigation and any criminal charges arising therefrom were sorted out.
3. On 26 July 2002, a delegate of the Respondent decided to revoke the grant of certificate of Australian citizenship to Mr. Alkiswani.
4. Although Mr. Alkiswani was charged with serious criminal offences arising out of the incident, he was never convicted because he was found to be of unsound mind at the time the offences were committed.
5. Mr. Alkiswani seeks a review of the decision to revoke the grant of certificate of Australian citizenship on the following grounds:
(a)Under the circumstances of this case, the delegate had no power to revoke the grant.
(b)Even if the delegate did have the power to revoke the grant, he should not have done so because Mr. Alkiswani has not been convicted of a criminal offence, and, following medical treatment, he is now well.
6. At the hearing, Mr. Alkiswani was represented by Mr. Rangiah of Counsel and the Respondent was represented by Mr. Cramer, solicitor.
7. The Tribunal had before it the documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, exhibit 1, and an affidavit of Clyde Patrick Consentino, solicitor for the Applicant, dated 13 June 2003, exhibit 2.
8. Australian citizenship is governed by the Australian Citizenship Act 1948 (the Act). The minister is given the power to admit a person who is not an Australian citizen to Australian citizenship. The process involves two steps.
Step 1:
A person wishing to obtain Australian citizenship must have been granted a certificate of Australian citizenship pursuant to section 13 of the Act. Those parts relevant to this review are:
“13 Grant of Australian citizenship
(1)Subject to this section, the Minister may, in the Minister’s discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:
(a)the person is a permanent resident;
…
(f)the person is of good character;
(11)The Minister shall not grant a certificate of Australian citizenship to a person under subsection (1), (9), (9B) or (9E):
(a)during any period during which proceedings for an offence against a law of the Commonwealth, a State or a Territory (including proceedings by way of appeal or review) are pending in relation to the person; or
(f)during any period during which the person is confined in a psychiatric institution by order of a court made in connection with proceedings of the kind referred to in paragraph (a) in relation to the person;”
Step 2:
The person must make the prescribed pledge of commitment pursuant to section 15 of the Act, which provides relevantly:
“15 Effect of grant of certificate of Australian citizenship
(1)A person to whom a certificate of Australian citizenship has been granted under this Division (other than subsection 13(9B) or (9E) shall be an Australian citizen:
(a)in the case of a person:
(i)who, at any time after lodging an application for a certificate of Australian citizenship (including a time after the grant of the certificate), makes a pledge of commitment in the manner provided by this section and in accordance with either of the forms set out in Schedule 2; and
(ii)to whom paragraph (b) does not apply:
on and after the day on which the certificate is granted or on which the person makes such a pledge of commitment, whichever last occurs;”
9. The background to this matter is not in dispute and the Tribunal finds as follows:
(a)Mr. Alkiswani was born in Kuwait on 11 January 1966.
(b)On 18 August 1997 he arrived in Australia on a Jordanian passport with a Sub-Class 676 tourist visa.
(c)On 29 September 1997 he applied for a protection visa.
(d)On 15 June 1998 he was granted a protection visa, following a review by the Refugee Review Tribunal.
(e)On 10 May 2001 he lodged an application for the grant of Australian Citizenship.
(f)On 30 October 2001 he attended an interview with a delegate of the Respondent and the delegate approved the grant of a certificate of Australian Citizenship pursuant to section 13 (1) of the Act.
(g)On 20 February 2002 he was invited to attend a Citizenship ceremony, scheduled to be held on 14 March 2002.
(h)On 7 March 2002 he was arrested following the altercation with the “street preacher”, mentioned above. The facts recorded on the Queensland Police Brief were:
“The complainant in this instance is a 50 year old male. On the morning of Thursday the 7th of March 2002 the complainant was standing on the corner of Boundary and Vulture Streets, West End. The complainant is a preacher and at this time was preaching at that intersection. At approximately 9.50 am the complainant was accosted by a male person, the defendant. The defendant has argued with the complainant and assaulted him by shouldering him causing him to fall against a shop window.
The defendant has then left and returned approximately 10 minutes later. On this occasion the defendant was in possession of a tin of lighter fluid and a box of matches. The defendant has then poured lighter fluid over the head of the complainant. The fluid has run off the complainants head and onto his shoulders. At this time the complainant has stood still as he was of the belief that the defendant was pouring water over his head, not lighter fluid. The defendant has then struck one match and thrown it at the complainant however if failed to ignite. The defendant has then struck a second match which did ignite and threw it at the complainant. The match hit the complainant in the head and immediately ignited the lighter fluid. The complainants head and shoulders have been engulfed in flame. Passers by have then come to the aid of the complainant and extinguished the fire. Other passers by have then detained the defendant. Police were then called and a complaint was made. The complainant at no time gave any person permission or authority to assault him in any way. He did not provoke or assault the defendant in any way. The complainant was conveyed to Hospital as a result of this assault where he was treated for burns to his head, neck and shoulders. The burns to the complainant were not severe and he was released from hospital the same day.”
Mr. Alkiswani was charged with:
(a)Attempted Murder;
(b)Doing an act intended to maim; or disfigure; and
(c)Assault
(i)On 9 March 2001, a delegate of the Respondent saw the following newspaper article:
“Defendant ‘mentally unfit’
A MAN accused of setting a street preacher on fire this week was deemed mentally unfit to appear before the Brisbane Magistrate’s Court yesterday.
Ayman Mohammod Alkiswani, 36, was charged on Thursday with attempted murder, assault, and with committing acts intended to maim or disfigure. Alkiswani has been accused of dousing street preacher Paul Sheehan with lighter fluid and setting him on fire on the corner of Vulture and Boundary Streets, West End. Mr Sheehan received minor burns.
The court was told Alkiswani was not mentally fit.
He was taken to the John Oxley Memorial Hospital for treatment where he will stay until a court appearance on June 6.”
(j)On 11 March 2001, the delegate received confirmation of the newspaper report, from the Queensland Police Service. The delegate withdrew the invitation to Mr. Alkiswani to attend the Citizenship ceremony due to take place on 14 March 2002. The matter was then deferred.
(k)In 2002, the Act was amended to include, among other things, section 14B. The new section commenced on 1 July 2002. The parts of it relevant to this review are:
“14B(1)
If:
(a)a certificate of Australian citizenship has been granted to a person under this Division after the commencement of this section; and
(b)the persons has not become an Australian citizen under section 15; and
(c)either:
(i)if it were assumed that the certificate had not been granted and the person were to make a fresh application for the certificate, the Minister would be required to make a decision under section 13 refusing the application;
(ii)the person has failed to make a pledge of commitment within 12 months after the date on which the person was notified of the Minister’s decision under s.13 to grant a certificate, and the person does not have an acceptable reason for the failure;
the Minister may, in the Minister’s discretion, revoke the grant of certificate.” (underlining added)
(l)On 9 July 2002 the Respondent received advice from the Queensland Police Service that the charges against Mr. Alkiswani had been listed for mention in the Brisbane Magistrates Court on 25 October 2002, and that a trial was not likely for some time after that.
(m)On 26 July 2002 the Respondent’s delegate decided to revoke the grant of certificate of Australian citizenship. The revocation power was purportedly exercised under sub-section 14B(1), in combination with sub-section 13(11)(a) (set out in paragraph 8 above).
(n)On 16 August 2002 an Application for Review of Decision was lodged with the Tribunal.
(o)Dr Cassandra Griffin, psychiatrist, provided a report to the Department of Immigration, Multicultural and Indigenous Affairs dated 2 August 2002:
“Mr Alkiswani is a patient under my care and he brought to my attention some correspondence from your department dated 26 July 2002 with the above reference number. I am providing this letter on his behalf in response to that correspondence and after a telephone conversation this week with Miriam Masini of the ‘phone unit’ at your Sydney office.
Mr Alkiswani is detained currently in an inpatient psychiatric facility under the Mental Health Act 2000 as a classified patient. You will be aware that he has been charged with a number of serious offences for which legal proceedings have been adjourned pending the outcome of their reference to the Mental Health Court expected to take place either late this year or early next year. It is possible that he will be granted a defence of unsoundness of mind in relation to those matters.
Mr Alkiswani has a mental illness for which he was receiving no treatment at the time of the offences. He had been very unwell for many months preceding his offending and on his arrest was transferred to our facility for treatment. He has shown a significant improvement over the past few months and is now free of any major symptoms of mental illness. He is entirely cooperative with all aspects of his care and the prognosis for his mental illness is promising.
I am aware that Mr Alkiswani has made an application for the granting of Australian citizenship some time in the past and that your department had approved that application last year. Your letter of 26 July 2002 refers to a decision made by your department to revoke that approval of his application and refuse his application. In that same letter your department supports that move by the lack of any reply from Mr Alkiswani to your department to apparent previous correspondence in the early months of this year.
I am writing to inform you that Mr Alkiswani was, in my opinion, over a matter of many months through late 2001 and early 2002, on account of his mental state, not competent to reason about this matter with any degree of consideration and certainly not able to adequately instruct your department on this matter. He is now sufficiently well to be more than able to do so and would like to resume contact with your department about the matter. He is understandably eager for you to allow his application for citizenship to stand.”
(p)On 6 December 2002 the Mental Health Court decided that:
(i)The Applicant was of unsound mind when the alleged offences of doing an act with intent to maim or disfigure, assault and possessing and acquiring a restricted item were committed and ordered that the proceedings be discontinued against him.
(ii)There was reasonable doubt that the Applicant committed the alleged offence of attempted murder. The Applicant was fit for trial and that the proceedings be continued.
(iii)A forensic order be given detaining the Applicant for involuntary treatment in John Oxley Memorial Hospital.
(q)On 6 February 2003, the charge of attempted murder was withdrawn by the Office of the Director of Public Prosecutions. Thereafter there were no further Court proceedings current in relation to the above matters.
(r)A further psychiatric report was provided by Dr. Geoffrey Rees dated 4 April 2003:
“I write to you in my capacity as Mr Alkiswani’s treating psychiatrist at The Park Psychiatric Facility, Wacol, where he is currently an inpatient.
As you appreciate Mr Alkiswani has a history of Bipolar Affective Disorder predating his arrival in Australia as a refugee. As a result of his torture and imprisonment in Jordan, this man additionally has some symptoms consistent with a diagnosis of PostTraumatic Stress Disorder.
Despite all of these exigencies this man is showing a remarkably good effort at maximising his rehabilitation opportunity and resources.
Current Mental State
Mr Alkiswani currently presents as clean, casually dressed man of Middle Eastern appearance. He is co-operative with interview, maintains good eye contact and rapport is easily established. There is no psychomotor agitation or retardation.
Mr Alkiswani’s speech is normal in rate, rhythm and volume, and he has an accent. His mood is not depressed or elevated, and his affect is reactive and appropriate.”
10. The question raised is whether the Respondent, having granted a certificate of Australian citizenship under s.13(1) of the Act, had the power to revoke that grant, and, if he did, whether he should have.
11. It has been conceded on behalf of the Respondent that when the delegate revoked the grant on 26 July 2002, he erred when he purported to derive his power to revoke the grant from section 14B of the Act. That section only applied to certificates of Australian citizenship granted after 1 July 2002. The grant to Mr. Alkiswani was made on 30 October 2001.
12. The case put on behalf of Mr. Alkiswani is that the Respondent did not have the power to revoke the grant. There is no provision in the Act which gives such a power in Mr. Alkiswani’s circumstances.
13. It is the Respondent’s position that although the Act did not contain an express power to revoke the grant of a certificate of Australian citizenship, there was power to revoke the grant on either of two bases:
(a)An implied power – taking the tenor and construction of the Act as a whole; and
(b)Power to revoke a grant of an instrument pursuant to s.33(3) of the Acts Interpretation Act 1901 which provides:
“33(3) Where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by-laws) the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.”
14. The questions as to whether or not s.33(3) of the Acts Interpretation Act 1901 applies only to legislative instruments, and persons making administrative decisions have the power to revoke their decisions, were analysed at some length by the Full Federal Court in Leung and Another v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 76.
Per Finkelstein J.
“If a statute confers a power or a function, once that power has been exercised or the function performed the purpose for its creation has been fulfilled with the consequence that the power or function is exhausted. In Blacks Law Dictionary (5th ed, 1979) ‘functus officio’ is defined as ‘a task performed’ and it is applied to ‘an instrument, power agency etc which has fulfilled the purpose of its creation and is therefore of no further effect or virtue’.
It is for this reason that where it is sought to reconsider the exercise of a statutory power or the performance of a statutory function it is necessary to find the power to do so in the statute. That power may be express or it may exist by way of implication. In the case of some statutes the power will be implied as a result of the application of s 33(3) of the Interpretation Act. The circumstances in which s 33(3) of the Interpretation Act will be held to apply to reconsider the grant or issue of an instrument have not been finally settled. There are cases that have held that s 33(3) only applies to the grant or issue of a document of a legislative character: see eg. Australian Capital Equities Pty Ltd v Beale (1993) 41 FCR 242 at 256-7; 114 ALR 50 per Lee J. There are other cases that support the view that the section can have application to the grant or issue of any instrument: see eg Re Brian Lawlor at 172 per Brennan J.
When one turns to consider the circumstances in which a power of reconsideration will be implied, an examination of the cases shows that no coherent set of principles has as yet been developed. The courts have been required to choose between two competing interests. On the one hand there is the desirability for the administration to be able to correct decisions arrived at as a result of an error of law or an error of fact. In some cases it may also be desirable that an administrative decision be altered when there has been a change in policy. On the other hand, if a decision is favourable to an individual its reconsideration may cause a real sense of grievance: see generally M Akehurst, ‘Revocation of Administrative Decisions’ [1982] Pub Law 613.
These competing views are reflected in the cases.
Kawasaki Motors is another example where the implication of a power to reconsider was made. I have already cited from the reasons of Beaumont J where the relevant principle appears and it is to the effect that a decision that proceeded on a wrong factual basis should be capable of revocation. I do not consider that his Honour was seeking to lay down a principle of general application to all administrative decision-makers but was confining himself to the exercise of the power there under consideration namely the grant of a tariff concession order under Pt SVA of the Customs Act 1901 (Cth). However, if it is to be taken as a statement of general principle to be applied whenever possible, it has much to commend it in my opinion. There is a good deal to be said for the view that an administrative decision which is plainly erroneous should not stand.”
And per Heerey J
“The Act therefore contemplates a period of time – which in practical terms could be expected to be fairly brief – during which one, but not both, of the essential pre-requisites of citizenship (certificate and pledge) exists in relation to a given person. During that period a certificate which on its face complies with the formal requirements of the Act is to be treated as valid unless set aside by appropriate proceedings. However, the Act necessarily implies a power, during this period, to revoke the certificate if it comes to the notice of the minister that a statutory criterion for the issue of the certificate did not in fact exist.
Such an implication is necessary for at least the following reason. Let it be assumed that it is discovered between grant of certificate and making of pledge that some of the criteria prescribed by s 13(1) did not exist in relation to a person. If the certificate could not be revoked, the pledge ceremony would go ahead. If s 21 deprivation grounds existed, citizenship would be conferred only to be taken away. The ceremony would be an unseemly charade. If no such grounds existed, citizenship would be conferred on a person known to be not entitled.
However, the revocation of the certificate would be in itself a decision attracting the rules of natural justice. The person concerned would be entitled to know the grounds on which it was now said that he or she did not meet the criterion in question, such as not being of good character (s 13(1)(f)), or not possessing a basic knowledge of English (s 13(1)(g)), and to be given the opportunity to put a case. An approach which treats a decision to grant a certificate on a wrong factual basis as being not a decision at all and something which can be ignored does not accommodate these considerations.”
15. The Tribunal is satisfied that a certificate of Australian citizenship would not have been granted to Mr. Alkiswani after 7 March 2002, till the present day.
16. The Tribunal adopts the observations of the Full Federal Court in Leung, and finds that in the case of Mr. Alkiswani, there were grounds that justified the delegate deciding that in the period prior to the scheduled pledge ceremony Mr. Alkiswani did not satisfy the provisions of s.13 of the Act and he was not entitled to a certificate of Australian citizenship. The correct and preferable decision was to revoke the grant.
17. The decision under review is affirmed.
I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .......................................................................................
AssociateDate/s of Hearing 26 June 2003
Date of Decision 26 November 2003
Counsel for the Applicant Mr. RangiahSolicitor for the Applicant South Brisbane Immigration and Community Legal Service
Solicitor for the Respondent Blake Dawson Waldron
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