Harman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2019] AATA 5294
•10 December 2019
Harman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2019] AATA 5294 (10 December 2019)
Division:GENERAL DIVISION
File Number(s): 2019/2420
Re:Don Harman
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member I Fletcher
Date:10 December 2019
Place:Perth
The Applicant’s application is dismissed.
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Member I Fletcher
Catchwords
CITIZENSHIP – prohibition – offences against Australian law – dismissal of application
Legislation
Australian Citizenship Act 2007 (Cth) – s 24(6), s 52(1)
Administrative Appeals Tribunal Act 1975 (Cth) – s 42B(1), s 43(1)
Cases
Bobbe and Minister for Home Affairs (Citizenship) [2018] AATA 2894
Lesi v Administration Appeals Tribunal [2015] FCA 1186
Omara and Minister for Home Affairs (Citizenship) [2019] AATA 42
REASONS FOR DECISION
Member I Fletcher
10 December 2019
BACKGROUND
Mr Don Harman (the Applicant), a citizen of Iraq, first arrived in Australia as an Irregular Maritime Arrival on 3 May 2012 as the holder of an Offshore Humanitarian (subclass 200) visa (T18, p 199).
On 7 August 2016, the Applicant applied to the Department of Home Affairs (the Department) for Australian citizenship by conferral (T5, pp 36-56).
In a letter dated 29 April 2019, the Department advised the Applicant that his application for Australian citizenship had been refused (T18, p 196) (the Reviewable Decision) on the basis that he failed to satisfy s 24(6)(a) of the Australian Citizenship Act 2007 (Cth) (the Act). The delegate for the Respondent (the Respondent) noted that the Applicant had a pending matter in the Midland Magistrates Court for the offences of stealing and gains benefit by fraud.
On the 4 May 2019, the Applicant made an application to the General Division of the Administrative Appeals Tribunal (the Tribunal) seeking review of the Reviewable Decision (Exhibit R5, T2). The documents submitted in support of the application indicate that the stealing charge was due to be heard by the Midland Magistrates Court on
16 August 2019 and the gains benefit by fraud offence was due to be heard by the Midland Magistrates Court on 21 August 2019 (T2, pp 10-11).The charge of gains benefit from fraud was withdrawn. On 26 August 2019, the stealing charge was heard in the Midland Magistrates Court and the Applicant was found guilty and fined $500 (Exhibit R3).
On 27 September 2019, the Applicant appealed against the stealing conviction
(Exhibit R4).JURISDICTION
The application for review is made in accordance with s 52(1)(b) of the Act, which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of a decision made under s 24 of the Act.
ISSUES
The issue originally for consideration by the Tribunal is whether the Tribunal is satisfied that no prohibitions in s 24(6) of the Act apply to the Applicant.
However, as a result of the decision by the Applicant to appeal against his conviction, the Respondent subsequently requested that the Tribunal consider the dismissal of the application under s 42B of the Administrative Appeals Act 1975 (Cth) (the AAT Act). The Tribunal acknowledged the request and agreed that this would be considered.
MATERIAL BEFORE THE TRIBUNAL
The Tribunal hearing took place on 20 November 2019.
The Applicant was self-represented and appeared in person.
Mr Burgess from Sparke Helmore represented the Respondent in person.
The Applicant had requested an interpreter which was arranged but he advised the Tribunal that this was not required and the interpreter did not participate in the proceedings.
The Tribunal admitted the following documents into evidence at the hearing:
(a)the Respondent's Statement of Facts Issues and Contentions, dated
14 August 2019 (Exhibit R1);(b)a Respondent's hearing certificate, dated 14 August 2019 (Exhibit R2);
(c)a copy of the Magistrate's Court of Western Australia prosecution notice, dated
30 August 2019 (Exhibit R3);(d)a copy of the Supreme Court of Western Australia Appeal notice, dated
27 September 2019 (Exhibit R4); and(e)Respondent's s 37 documents (T Documents) numbered T1 to T20 and comprising 214 pages (Exhibit R5).
LEGISLATIVE FRAMEWORK
Section 24(6) of the Australian Citizenship Act (Cth) provides that:
Offences
(6)The Minister must not approve the person becoming an Australian citizen at a time:
(a)when proceedings for an offence against an Australian law (including proceedings by way of appeal or review) are pending in relation to the person; or
(b)when the person is confined to a prison in Australia; or
(c)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; or
(d)if the person is a serious repeat offender in relation to a serious prison sentence—during the period of 10 years after the end of any period during which the person has been confined to a prison in Australia because of the imposition of that sentence; or
(e)if the person has been released from serving the whole or a part of a sentence of imprisonment on parole or licence—during any period during which action can be taken under an Australian law to require the person to serve the whole or a part of that sentence; or
(f)if the person:
(i) has been released by a court from serving the whole or a part of a sentence of imprisonment; and
(ii) has been so released because the person gave 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; or
(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; or
(h)during any period during which the person is confined in a psychiatric institution by order of a court made in connection with proceedings for an offence against an Australian law in relation to the person.
Section 42B(1) of the Administrative Appeals Act 1975 (Cth) provides that:
(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.
Section 43(1) of the Administrative Appeals Act 1975 (Cth) provides that:
(1)For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a)affirming the decision under review;
(b)varying the decision under review; or
(c)setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
Section 52(1) of the Australian Citizenship Act (Cth) provides that:
(1) An application may be made to the Administrative Appeals Tribunal for review of the following decisions:
(a)a decision under section 17 to refuse to approve a person becoming an Australian citizen;
(aa)a decision under section 19D to refuse to approve a person becoming an Australian citizen;
(b)a decision under section 24 to refuse to approve a person becoming an Australian citizen;
(c)a decision under section 25 to cancel an approval given to a person under section 24;
(d)a decision under section 30 to refuse to approve a person becoming an Australian citizen again;
(e)a decision under section 33 to refuse to approve a person renouncing his or her Australian citizenship, except a refusal because of the operation of subsection 33(5) (about war);
(f)a decision under section 34 or subsection 36(1) to revoke a person’s Australian citizenship.
CONTENTIONS
Pursuant to s 43(1) of the AAT Act, (see above at paragraph [8]) for the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing.
Pursuant to s 42B (1) of the AAT Act (see above at paragraph [7]) the Tribunal can exercise the power to dismiss a case.
On the material before the Tribunal on 20 November 2019, the Tribunal cannot approve the Applicant becoming an Australian citizen. Pursuant to s 24(6)(a) of the Act which states:
(6)The Minister must not approve the person becoming an Australian citizen at a time:
(a)when proceedings for an offence against an Australian law (including proceedings by way of appeal or review) are pending in relation to the person; or
…
The Applicant presently has proceedings for a stealing offence in the Australian judicial system and he has appealed against his conviction for stealing (Exhibit R4). The appeal is still to be considered.
Accordingly, pursuant to s 24(6)(a) of the Act, the Tribunal cannot approve the Applicant becoming an Australian citizen.
It is not in dispute that, presently, the prohibition in s 24(6)(a) of the Act applies.
Further, depending on the outcome at the next court date, further prohibitions may apply (see s 24(6)(b)-(h) of the Act).
The Respondent has contended that that it would be inappropriate to adjourn the hearing of this matter until the expiry of any potential prohibiting circumstance in s 24(6) of the Act. It would not be a proper exercise of its powers and discretion to defer the determination of the matter on the basis that there may be a future date where prohibitions may no longer exist (see Lesi v Administration Appeals Tribunal [2015] FCA 1186 applied in Bobbe and Minister for Home Affairs (Citizenship) [2018] AATA 2894, and Omara and Minister for Home Affairs (Citizenship) [2019] AATA 42).
Accordingly, on the material before the Tribunal, the Respondent has submitted that the correct and preferable decision is one that dismisses the Applicant's application.
The Applicant stated at the Tribunal that he had no previous convictions and that he was concerned if his application was dismissed it would take another seven years before he would be considered for Australian citizenship.
The Respondent pointed out that the Applicant had applied for Australian citizenship by conferral on 7 August 2016 and the delegate of the Minister had made a decision on
29 April 2019 which was a refusal to grant citizenship. The Tribunal notes that this process took less than three years, as opposed to the suggested seven years by the Applicant.The Respondent further advised the Tribunal that the Department of Home Affairs website shows that 75% of all applicants for Australian citizenship are determined within seventeen months and 90% within twenty months. He added that the Applicant can reapply for citizenship at any time.
CONSIDERATION
As there is still an appeal against the Applicant's conviction of stealing in the Australian judicial system, the prohibition of approving a person from becoming an Australian citizen still applies.
The Applicant can reapply for citizenship at any time and the time taken to process applications is not considered to be lengthy or unreasonable.
CONCLUSION
For the reasons outlined above, the Tribunal has determined that the application be dismissed in accordance with s 42B(1) of the Administrative Appeals Tribunal Act1975 (Cth).
I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Member I Fletcher
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Associate
Dated: 10 December 2019
Date(s) of hearing: 20 November 2019 Applicant: In person Counsel for the Joined Party: Mr A Burgess Solicitors for the Joined Party: Spark Helmore Lawyers
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