Bobbe and Minister for Home Affairs (Citizenship)
[2018] AATA 2894
•20 July 2018
Bobbe and Minister for Home Affairs (Citizenship) [2018] AATA 2894 (20 July 2018)
Division:GENERAL DIVISION
File Number(s): 2017/6976
Re:Mahmudul Hasan Bobbe
APPLICANT
And:Minister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Antoinette Younes
Date:20 July 2018
Date of written reasons: 16 August 2018
Place:Sydney
For the reasons given orally at the hearing on 20 July 2018, the application is dismissed in accordance with section 42B of the Administrative Appeals Tribunal Act 1975.
............................[sgd]................................
Senior Member Antoinette Younes
CATCHWORDS
CITIZENSHIP – application for conferral of Australian citizenship – refusal of citizenship application on grounds applicant does not satisfy the good character requirement – whether applicant is of good character – criminal record – use of carriage service to menace/ harass/ offend – multiple traffic offences – directed to enter into a good behaviour bond at time of review – Minister prohibited from approving citizenship application- inappropriate to adjourn matter until expiry of bond – no reasonable prospect of success – application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 42B
Australian Citizenship Act 2007, ss 21, 24
Crimes (Sentencing Procedure) Act of 1999 ss 10(1), 9(1)CASES
Lesi v Administration Appeals Tribunal [2015] FCA 1186
Minister for Immigration and Multicultural Affairs v “SRT” [1999] 91 FCR 234
Oliver v Minister for Immigration and Border Protection [2016] AATA 895WRITTEN REASONS FOR ORAL DECISION
Senior Member Antoinette Younes
16 August 2018
I have made a decision as follows. The respondent has requested the Tribunal to dismiss this application for review pursuant to section 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act.”)
Section 42B of the AAT Act provides that:
(1)The Tribunal may dismiss an application for the review of the 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.
The Respondent contends that the application for review has no reasonable prospect of success. I will now provide background to the review. Mr Bobbe, the Applicant, is a citizen of Bangladesh where he was born on 20 September 1987. He arrived in Australia on 8 April 2007 as the holder of a subclass 572 (Student) visa.
On 9 October 2013 he was granted a subclass 885, which is a Skilled Independent visa. The applicant lodged an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to whom I will refer to as the Minister on 31 October 2017 to refuse the application for Australian citizenship by conferral, which Mr Bobbe, the applicant, had lodged on 3 December 2014.
The Delegate refused the application on the basis that the Applicant did not satisfy relevant requirements of the Australian Citizenship Act 2007. Specifically the Delegate found that the Applicant did not meet the requirements of section 21(2)(h) relating to character.
At the time of the Delegate's decision record, the Delegate was aware that the Applicant Mr Bobbe had committed two offences, namely the offence of use carriage service to menace/harass/offend for which the Applicant was found guilty on 30 January 2014 and the offence of drive with low range PCA for which the Applicant was found guilty on 4 November 2016.
On 5 March 2018 the Respondent requested and the Tribunal issued summonses to produce documents to the New South Wales Commissioner of Police, the Registrar of the Downing Centre Local Court and the Registrar of the Burwood Local Court. On 20 March 2018 the material was produced to the Tribunal.
On 3 April 2018 the New South Wales Police Commissioner produced further material to the Tribunal.
On 19 July 2018 the Applicant provided further information in relation to Court outcomes of 16 July 2018 about matters that were outstanding at the time of the hearing on 5 July 2018.
The Tribunal has considered the evidence very carefully. The evidence before the Tribunal indicates that the Applicant has been found guilty and convicted of at least 30 offences dating from 13 March 2008 and as recently as March 2018, over a 10 year period that is.
The offences relate to matters, and some of which had occurred on more than one occasion, such as exceeding speed limit, failure to pay penalty, failure to comply with conditions of provisional licence, being an unlicensed driver/rider for wrong class, failure to comply with P2 licence condition, driving a vehicle with two or more unrestrained passengers, drive vehicle without numberplate or unauthorised/obscured/illegal/misleading/altered or incorrectly fixed numberplate, use carriage service to menace/harass/offend, driving with low range PCA, driving whilst disqualified, failing to stop at red arrow – camera detected and making an unlawful U-turn.
Relevantly, after lodging the application for Australian Citizenship by conferral on 3 December 2014, Mr Bobbe, the applicant, has been found guilty and/or convicted of at least 20 offences, including driving while disqualified, driving in excess of the permitted speed limit and drink driving.
It is therefore evident and the Tribunal finds that over the years and on multiple occasions the Applicant lost demerit points. He was ordered to pay fines and he was disqualified.
The Applicant appeared at the Downing Centre Local Court on 16 July of 2018 in relation to the following offences; Drive motor vehicle while licence suspended (second offence), not stopping at stop line at red light (not toll booth), drive motor vehicle during disqualification period and class A motor vehicle exceeding speed limit by over 20 kilometres an hour.
Mr Bobbe, the Applicant, pleaded guilty and he was found guilty or convicted of each of those offences. Relevantly however, for the offence of drive motor vehicle while licence suspended (second offence) Mr Bobbe entered a plea of not guilty. He was however found guilty and without proceeding to a conviction he was directed to enter into a good behaviour bond for six months pursuant to Subsection 10(1)(b) of the Crimes Sentencing Procedure Act of 1999 to commence on 16 July of 2018.
The Applicant has provided copies of medical records referring to a number of ailments. The Tribunal has noted that material.
It is not open to this Tribunal to go beyond the findings of the Courts. In Minister for Immigration and Multicultural Affairs v “SRT” [1999] 91 FCR 234, the Full Federal Court held that a conviction and the sentence imposed as a result of a conviction are matters for the Criminal law and its procedures are not for an administrative tribunal.
It is therefore not open to the Tribunal to critically evaluate or question the conclusions and the findings of the Courts. On the evidence before it, the Tribunal finds that the Applicant has been directed to enter into a good behaviour bond for six months pursuant to section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 to commence on 16 July 2018 and finish on 16 January 2019.
The central issue for determination is whether the Tribunal should dismiss this application.
The Respondent contended that Subsection 24(6) of the Australian Citizenship Act 2007 is applicable in this instance. The Section provides that:
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 cognisance 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.
The Respondent referred to Subsection 9(1) of the Crimes (Sentencing Procedure) Act 1999, which provides that:
Instead of imposing a sentence of imprisonment on an offender, a court may make an order directing the offender to enter into a good behaviour bond for a specified term.
The Respondent relied on the decision in Oliver v Minister for Immigration and Border Protection [2016] AATA 895 (11 November 2016) in which Deputy President Constance essentially found that the Applicant in that particular case surrendered to the custody of the Court when he appeared and pleaded guilty. Therefore it followed that he was subsequently released when he was free to return to the community rather than being sentenced to imprisonment and that this occurred when he complied with the direction of the Court by entering the good behaviour bond.
Deputy President Constance found that provided no further action is taken against the Applicant in that particular case in accordance with the condition of the bond it will expire. But until that time action can be taken against the Applicant and consequently pursuant to section 24 of the Australian Citizenship Act 2007 that Applicant must not become an Australian citizen and his application must not be approved.
The Applicant submitted that there are differences in the nature of the offences and that his convictions only relate to traffic offences. The Tribunal reminded him that he has been charged and/or convicted of over 30 offences, which the Tribunal considered to be significant.
The Applicant argued that the Department does not want to approve his application for citizenship because he lodged in 2014 and others who lodged at the same time had been approved. The Tribunal has noted those submissions.
On the evidence before it, the Tribunal finds that the Applicant has entered into a good behaviour bond, which will expire on 16 January of 2019, and consequently action can still be taken against him. Therefore, the Tribunal is satisfied that the prohibition in Section 24(6)(g) applies in this case.
The Respondent contended that it is inappropriate to adjourn the matter until the expiry of the term of the bond. The Respondent relied on the decision of Lesi v Administration Appeals Tribunal [2015] FCA 1186 as authority for the proposition that although there is no time limit on the Minister's consideration of the matter, the Minister does not have power to defer consideration of the application.
In that case the Court held that:
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.
Consistent with that authority the Tribunal finds that it would not be a proper exercise of its powers and discretion to defer the determination of the matter on the basis that the bond would expire in six months.
In light of the Tribunal's finding, that the Applicant has been directed to enter into a good behaviour bond for six months, the Tribunal is satisfied that the Tribunal is prohibited from approving the applicant's application for citizenship pursuant to section 24(6)(g) of the Citizenship Act 2007 and accordingly the Tribunal has decided to dismiss this application under section 42B(1) of the AAT Act.
The Tribunal is satisfied that the application does not have a reasonable prospect of success.
I certify that the preceding 31 (thirty –one ) paragraphs are a true copy of the reasons for the decision herein of Senior Member Antoinette Younes
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Associate
Dated: 16 August 2018
Date(s) of hearing: 5 July 2018 and 20 July 2018 Date final submissions received: 20 July 2018 Applicant: In person Solicitors for the Respondent: Ms Rachel Noronha, Clayton Utz
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