Elvidge and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2024] AATA 356

Elvidge and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 356 (6 March 2024)

Division:GENERAL DIVISION

File Number(s):      2023/5240

Re:Stuart Brian Elvidge

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member George

Date:6 March 2024

Place:Adelaide

The Tribunal dismisses the Application pursuant to s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) as it has no reasonable prospect of success.

...............[Sgnd].......................

Senior Member George

CATCHWORDS

PRACTICE AND PROCEDURE – application for summary dismissal under s 42B(1)(b) – whether application has reasonable prospects of success – application dismissed

LEGISLATION

Australian Citizenship Act 2007 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth)

CASES

Re Paraponiaris and Secretary, Department of Employment (2015) 153 ALD 484

Zahidy and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 805

REASONS FOR DECISION

Senior Member George

6 March 2024

1. Mr Elvidge is a British citizen and has lived in Australia for several decades. His application for Australian citizenship has been refused under the provisions of the Australian Citizenship Act 2007 (Cth) (“the Citizenship Act”).

2. The Respondent has sought summary dismissal of the present proceedings under s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) on the basis that Mr Elvidge’s application has no reasonable prospect of success. The power of summary dismissal under s 42B(1)(b) of the Act is not to be exercised lightly. Deputy President Alpins’ decision in Re Paraponiaris and Secretary, Department of Employment (2015) 153 ALD 484 is authoritative and sets out the principles that properly inform the judgment of the Tribunal. In essence, any judgment of a lack of reasonable prospects of success is a practical assessment.

3. For the following reasons, the Tribunal is satisfied that Mr Elvidge’s application for review of the reviewable decision should be dismissed for a lack of reasonable prospects of success.

4. The material facts in this matter are straightforward. After living in Australia since 1976, Mr Elvidge was convicted of several counts of criminal offending on 13 January 2022. When sentencing Mr Elvidge, His Honour stated, “I formally convict you and sentence you to a term of imprisonment of 16 months”. His Honour then suspended the sentence after Mr Elvidge had served four months, with an operational period of 12 months from Mr Elvidge’s date of release. An email from Northern Territory Correctional Services of 8 June 2023 confirms that Mr Elvidge was received into Darwin Correctional Centre on 13 January 2022 and discharged on 12 May 2022.

5. In September 2022, Mr Elvidge applied for Australian citizenship using Form 1290. At Question 38(a) of that Form, Mr Elvidge declared that he had been convicted of and found guilty of offences in Australia and he provided an appropriate criminal history in support of this declaration. On 27 June 2023, Mr Elvidge’s application for Australian citizenship was refused. This is the reviewable decision.

6. The Respondent has sought summary dismissal of the present proceedings on two grounds. Firstly, the Respondent has submitted that Mr Elvidge has not satisfied the general residence requirement contained in ss 22(1)(a) and 22(1C)(a) of the Citizenship Act. Secondly, the Respondent has submitted that the operation of s 24(6)(c) of the Citizenship Act precludes Mr Elvidge being granted citizenship. Under that provision, a person must not be approved to become an Australian citizen at a time:

   “during the period of 2 years after the end of any period during which the person has been confined to a prison in Australia because of the imposition on the person of a serious prison sentence.”

7. A ‘serious prison sentence’ is defined in s 3 of the Citizenship Act as meaning “a sentence of imprisonment for a period of at least 12 months”.

8. Mr Elvidge has submitted that, as he served four months of actual imprisonment, he did not serve a prison sentence of 12 months or more. As such, this submission may be taken that Mr Elvidge says that he has not served a serious prison sentence such as to bar his application. In support of this submission, Mr Elvidge has cited the wording of the Form 1290 and relied upon Zahidy and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 805 to argue that the wording of the Form 1290 should be consistent with the Citizenship Act.

9. The Form 1290 should be consistent with the Citizenship Act, but in the event of any inconsistency the provisions of the Citizenship Act must prevail. The wording in His Honour’s sentencing remarks is unequivocal. Mr Elvidge was sentenced to a term of imprisonment of 16 months. This is a serious prison sentence within the meaning of s 3 of the Citizenship Act, despite any suspension and operational period. Accordingly, under s 24(6)(c) of the Citizenship Act Mr Elvidge cannot be approved to become an Australian citizen until two years after the end of his confinement on 12 May 2022 in Darwin Correctional Centre. That means that, on the evidence before the Tribunal, Mr Elvidge may reasonably reapply for Australian citizenship from 12 May 2024.

10. A practical assessment of Mr Elvidge’s application is that it cannot succeed due to the operation of s 24(6)(c) of the Citizenship Act. It is therefore unnecessary to consider the general residence requirement further.

    DECISION

11. Accordingly, the Tribunal dismisses the Application pursuant to s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) as it has no reasonable prospect of success.

I certify that the preceding 11 paragraphs are a true copy of the reasons for the decision herein of Senior Member George

............................[Sgnd]...................................

Associate

Date of Decision:	6 March 2024
Date of Hearing:	13 February 2024
Representation for the Applicant:	Self-represented
Solicitor for the Respondent:	Maximillian Plitsch Australian Government Solicitor