Kalmakhelidze and Minister for Immigration and Citizenship

[2008] AATA 469

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 469

ADMINISTRATIVE APPEALS TRIBUNAL      )         No.  2008/0238

)

GENERAL ADMINISTRATIVE DIVISION		)
Re		MAMUKA KALMAKHELIDZE

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal: The Hon Robert Nicholson, AO, Deputy President

Date:             27 May 2008

Place:Melbourne

For reasons given orally at the hearing, the Tribunal affirms the decision under review and the application is dismissed.

(sgd) Robert Nicholson

Deputy President

CITIZENSHIP – application for Australian citizenship – application refused on character grounds – applicant subject to an intensive correction order – decision under review affirmed

Australian Citizenship Act 2007 ss 24(6)(a) and 24(6)(f)

REASONS FOR DECISION

27 May 2008 The Hon Robert Nicholson, AO, Deputy President

1.      The applicant seeks a review of a decision made on 19 December 2007.  The decision was that the applicant’s application for Australian citizenship was refused.

2.      The reason given in the decision for the refusal was that one of the circumstances referred to in s 24 of the Australian Citizenship Act 2007 applied so that the Minister was prohibited from approving an application for Australian citizenship.  The particular circumstance cited was that referred to in section 24(6)(a), namely:

when proceedings for an offence against an Australian law…are pending in relation to the person…

3.      On 3 April 2007 the applicant was charged in Victoria with the offences of stalking another person contrary to the Crimes Act 1958 (Vic), making threats to kill another person and blackmail.  On 19 March 2008, a committal hearing was held in the Victorian Magistrates Court.  The magistrate struck out the charges of stalking and threat to kill and committed the applicant for trial only on the charge of making an unwarranted demand with menaces.

4.      On 2 May 2008 a trial was held in the County Court of Victoria.  A verdict of guilty was delivered against the applicant in respect of the count of blackmail.

5.      On 20 May 2008 the applicant was sentenced to imprisonment for a period of eight months to be served by way of intensive correction in the community.  He was then subject to an intensive correction order pursuant to regulation 16 of the Sentencing Regulations 2002.

6.      The result is that at the time this review is now sought, the Minister continues to be prohibited from approving the applicant’s application to become an Australian citizen.  This is because of another paragraph of section 24(6) of the Australian Citizenship Act 2007.  That sub-paragraph provides that the Minister must not approve a person becoming an Australian citizen at a time:

(f) if the person:

(i)has been released by a court from serving the whole or 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…

7.        The respondent contends that this sub-paragraph applies to the applicant’s circumstances.  Firstly, he has been released by the court from serving the whole of a sentence of imprisonment.  Secondly, he has been so released because he gave a security that he will comply with conditions relevant to his behaviour.  Thirdly, action may be taken against him if he fails to comply with those conditions at any time the intensive correction order is in force.  Consequently, there is no utility in the Tribunal remitting the matter to the respondent for reconsideration because the Minister, or his delegate, is precluded from approving the application for the same reasons.  I accept the respondent’s submission that the paragraph is applicable on the facts and it does not apply any discretionary relief to the bar which parliament has enacted in it.

8.      The applicant wishes to advance his application in order to be able to travel to be with his sick father in Georgia.  His spokesperson today referred to matters pertaining to his character and otherwise being relevant only to the exercise of a discretion.  As I have said, the legislation under which this Tribunal is acting provides no discretion and the Tribunal is bound by the provision that there is simply no power in the Minister to approve the application or to advance it while the intensive correction order is in force.

9.      Accordingly, there is nothing the Tribunal can do for the applicant on this application and the decision of the delegate to refuse the applicant’s application for Australian citizenship must be affirmed.

10.      As the respondent has submitted, that does not preclude the applicant from later, after the expiry of the intensive correction order, bringing a fresh application to the Minister at a time when the intensive correction order has expired.

I certify that the ten [10] preceding paragraphs are a true copy of the reasons for the decision of:

The Hon Robert Nicholson, AO, Deputy President

(sgd) Mara Putnis

Clerk

Date of hearing:  27 May 2008

Date of decision:  27 May 2008
Advocate for the applicant:          Ms I. Schvili

Advocate for the respondent:      Ms T. van Duyn, Clayton Utz Lawyers