Kevin Jones (previously known as Sarmad Jaderi) and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 3680 (17 September 2020)
Division:GENERAL DIVISION
File Number(s): 2020/3563
Re:Kevin Jones (previously known as Sarmad Jaderi)
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member B J Illingworth
Date:17 September 2020
Place:Adelaide
The application for review is dismissed pursuant to subsection 42B(1)(b) of the Administrative Appeals Tribunal Act 1975.
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Senior Member B J Illingworth
Catchwords
CITIZENSHIP – application to dismiss application for review for having no reasonable prospect of success – where applicant has pending criminal charges – Minister prohibited from approving citizenship application – application dismissed.
Legislation
Administrative Appeals Tribunal Act 1975
Australian Citizenship Act 2007Cases
Bobbe and Minister for Home Affairs [2018] AATA 2894
Filsell and Comcare [2009] AATA 90
General Steel Industries v Commissioner for Railways NSW (1964) 112 CLR 125
Omara and Minister for Home Affairs (Citizenship) [2019] AATA 42
REASONS FOR DECISION
Senior Member B J Illingworth
17 September 2020
INTRODUCTION
This is an interlocutory application made by the Minister (“the respondent”) by email dated 20 August 2020 that the application for review be dismissed under section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”). The interlocutory application was heard by telephone on 14 September 2020. Mr Kevin Jones formerly known as Sarmad Jaderi (“the applicant”) appeared by telephone and was assisted by and interpreter. The respondent was represented by Ms Milutinovic of Sparke Helmore solicitors.
BACKGROUND
On 14 January 2016 the applicant lodged an application for Australian citizenship by conferral pursuant to section 21 of the Australian Citizenship Act 2007 (“the Act”).[1]
[1] T5, page 16 – 27.
By letters dated 7 May 2018[2] and 1 April 2019[3] the applicant was sent a request for further information. By letter dated 5 March 2020[4] the applicant was sent an invitation to comment on adverse information, which was directed to the applicant’s identity.
[2] T8, page 42 – 45.
[3] T16, page 66 – 69.
[4] T22, page 133 – 137.
By letter and decision of the delegate of the Minister (“the delegate”) both dated 26 May 2020[5] the applicant was notified of the refusal of the application for Australian citizenship by conferral. The record of the delegate’s decision advised that the delegate was prohibited from approving the application for conferral of Australian citizenship because the delegate was not satisfied as to the applicant’s identity, as required by subsection 24(3) of the Act, which is a qualification that must be met for a person to become an Australian citizen.
[5] T25, page 159 – 171.
The Tribunal notes that within that record of the delegate’s decision, the delegate referred to seven pending charges of dishonesty and other motor vehicle offences before the Local Court with a last appearance date of 14 May 2020. Nonetheless the delegate in referring to subsection 24(6) of the Act did not assess that subsection when coming to the decision to refuse the application for Australian citizenship by conferral.[6]
[6] T25, pages 166 – 169.
Subsection 24(6)(a) of the Act relevantly provides as follows:
(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.
…
It is unclear why the delegate did not assess the application for citizenship based on the fact of pending charges when there was evidence clearly before the delegate which enlivened that prohibition against approving his citizenship application. Had the delegate done so, it would have made plain to the applicant, that irrespective of the dispute about his identity, the application for citizenship was still doomed to fail because of the operation of subsection 24(6)(a) of the Act.
On 15 May 2020, the applicant lodged with the Tribunal, an application for review of the decision of the delegate.
The respondent filed with the Tribunal Section 37 – T Documents which included a National Criminal History Check Results Report which records that the applicant still has the same seven pending court appearances before the Local Court with the same last court appearance date. The respondent advised the Tribunal that the applicant had pleaded not guilty to the seven charges and is to next appear in court in December 2020.
The respondent has now made application to the Tribunal to dismiss the application for review pursuant to section 42B of the AAT Act on the basis that the prohibition to grant citizenship provided by subsection 24(6)(a) of the Act will apply to the hearing of the application for review before the Tribunal and accordingly the application cannot succeed.
On 4 August 2020 the Tribunal directed the applicant to inform the Tribunal and the respondent in writing by 14 August 2020 whether, by virtue of the pending charges, the applicant withdrew the application for review or intended to proceed with it. On 14 August the applicant advised the Tribunal that he did not wish to withdraw his application. Accordingly, the Tribunal listed the matter for an interlocutory hearing of the respondent’s application to dismiss the application for review.
The respondent subsequently provided to the Tribunal and updated National Criminal History Check Results Report which records that the applicant has two additional charges of dishonesty involving a motor vehicle which were also pending and last before the Local Court on 10 August 2020. The applicant advised the Tribunal at the hearing of the interlocutory application that he anticipates those two matters will be resolved by December 2020. Hence the applicant currently has nine pending charges for offences against an Australian law.
During the hearing of the interlocutory argument the applicant complained about the length of time it took the delegate to reach a decision on his application for citizenship, and was also critical of the decision that the delegate could not be satisfied as to his identity. He submitted that the delegate relied on incorrect information.
CONSIDERATION
Subsection 42B(1)(b) of the AAT Act provides that the Tribunal may dismiss an application for the review of a decision, at any stage of the proceedings, if the Tribunal is satisfied that the application has no reasonable prospect of success.
Upon the hearing of the substantive application for review of the decision by the delegate, the Tribunal stands in the shoes of the decision maker (the delegate) and hears the matter afresh. Albeit at the time of the original decision, the decision-maker refused the application for citizenship by conferral because the delegate could not be satisfied as to the applicant’s identity, the fact that the pending charges and the operation of subsection 24(6) were before the delegate but were not assessed, does not mean that the Tribunal will ignore that material when coming to a decision on the application for review.
Regardless of any Tribunal finding with respect to the identity of the applicant, the applicant cannot succeed on the application for review. Even if the applicant satisfied the Tribunal as to his identity as required by subsection 24(3) of the Act, the Tribunal will then turn to consider the consequence of the applicant’s pending charges for offences against the laws of Australia and the operation of subsection 24(6)(a) of the Act.
The respondent correctly submitted the Tribunal has no discretion to postpone the hearing of the substantive application pending the finalisation of the pending charges. Justice Besanko considered this question in Lesi v Administrative Appeals Tribunal and Minister for Immigration and Border Protection [2015] FCA 1186 and at [23] – [24] said:
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. He continued ... there would need to be something in the Act to suggest that the future occurrence of an event identified in s24(6) of the Act was a relevant consideration in terms of the general power to adjourn. I can find nothing in the act to that effect.
As the respondent submitted, that principle has been regularly followed by the Tribunal and referred to the decisions of Bobbe and Minister for Home Affairs [2018] AATA 2894 and Omara and Minister for Home Affairs (Citizenship) [2019] AATA 42.
The subsection 24(6)(a) prohibition will apply on the hearing of the application for review, and because of the pending charges the Tribunal must not approve the application for conferral of citizenship. Therefore, the Tribunal must affirm the delegate’s decision and refuse the application for Australian citizenship.
It is well-settled that the Tribunal has a discretion pursuant to subsection 42B(1)(b) of the AAT Act to dismiss an application before it, where the application has no prospect of success; albeit this discretion is to be applied sparingly and with great care.[7] It is appropriate to act in accordance with that discretion, so that futile or inappropriate matters are not before the Tribunal and arguably causing a waste of time and resources to the parties.[8]
[7] General Steel Industries v Commissioner for Railways NSW (1964) 112 CLR 125 at [128].
[8] Filsell and Comcare [2009] AATA 90 at [33].
It must be remembered that the Tribunal’s objects are referred to in section 2A of the AAT Act and that in carrying out its functions the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
By virtue of the operation of subsection 24(6)(a) of the Act the application for review has no reasonable prospect of success and in the circumstances of this matter the discretion afforded by section 42B(1)(a) of the AAT Act is properly enlivened. Accordingly, I grant the interlocutory application
DECISION
Pursuant to section 42B(1) of the AAT Act the application for review is dismissed.
24. I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth
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Associate
Dated: 17 September 2020
Date of hearing:
14 September 2020 (by telephone)
Applicant:
In person
Advocate for the Respondent:
Ms N Milutinovic, Sparke Helmore
- AGLC
- Kevin Jones (previously known as Sarmad Jaderi) and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 3680
- Case
- [2020] AATA 3680
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Tribunal was whether the applicant's application for review had no reasonable prospect of success, thereby justifying its dismissal under section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975. This required the Tribunal to consider whether, notwithstanding any potential dispute regarding the applicant's identity, there were other grounds that would inevitably lead to the refusal of his citizenship application.
The Tribunal reasoned that even if the applicant could satisfy the delegate as to his identity, a separate and insurmountable barrier to his citizenship application existed under subsection 24(6)(a) of the Australian Citizenship Act 2007. This provision prohibits the Minister from approving a citizenship application while proceedings for an offence against an Australian law are pending against the applicant. The Tribunal noted that the delegate's decision had not considered this prohibition, despite evidence of pending criminal charges being before the delegate. Applying established case law, the Tribunal held that it had no discretion to postpone the consideration of the application pending the finalisation of these charges. Consequently, the Tribunal concluded that the applicant's application for review had no reasonable prospect of success.
Accordingly, the Tribunal granted the Minister's interlocutory application and dismissed the applicant's application for review pursuant to section 42B(1) of the Administrative Appeals Tribunal Act 1975.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
During the hearing of the interlocutory argument the applicant complained about the length of time it took the delegate to reach a decision on his application for citizenship, and was also critical of the decision that the delegate could not be satisfied as to his identity. He submitted that the delegate relied on incorrect information.CONSIDERATION Subsection 42B(1)(b) of the AAT Act provides that the Tribunal may dismiss an application for the review of a decision, at any stage of the proceedings, if the Tribunal is satisfied that the application has no reasonable prospect of success. Upon the hearing of the substantive application for review of the decision by the delegate, the Tribunal stands in the shoes of the decision maker (the delegate) and hears the matter afresh. Albeit at the time of the original decision, the decision-maker refused the application for citizenship by conferral because the delegate could not be satisfied as to the applicant’s identity, the fact that the pending charges and the operation of subsection 24(6) were before the delegate but were not assessed, does not mean that the Tribunal will ignore that material when coming to a decision on the application for review. Regardless of any Tribunal finding with respect to the identity of the applicant, the applicant cannot succeed on the application for review. Even if the applicant satisfied the Tribunal as to his identity as required by subsection 24(3) of the Act, the Tribunal will then turn to consider the consequence of the applicant’s pending charges for offences against the laws of Australia and the operation of subsection 24(6)(a) of the Act. The respondent correctly submitted the Tribunal has no discretion to postpone the hearing of the substantive application pending the finalisation of the pending charges. Justice Besanko considered this question in Lesi v Administrative Appeals Tribunal and Minister for Immigration and Border Protection [2015] FCA 1186 and at [23] – [24] said: 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. He continued ... there would need to be something in the Act to suggest that the future occurrence of an event identified in s24(6) of the Act was a relevant consideration in terms of the general power to adjourn. I can find nothing in the act to that effect. As the respondent submitted, that principle has been regularly followed by the Tribunal and referred to the decisions of Bobbe and Minister for Home Affairs [2018] AATA 2894 and Omara and Minister for Home Affairs (Citizenship) [2019] AATA 42. The subsection 24(6)(a) prohibition will apply on the hearing of the application for review, and because of the pending charges the Tribunal must not approve the application for conferral of citizenship. Therefore, the Tribunal must affirm the delegate’s decision and refuse the application for Australian citizenship. It is well-settled that the Tribunal has a discretion pursuant to subsection 42B(1)(b) of the AAT Act to dismiss an application before it, where the application has no prospect of success; albeit this discretion is to be applied sparingly and with great care.[7] It is appropriate to act in accordance with that discretion, so that futile or inappropriate matters are not before the Tribunal and arguably causing a waste of time and resources to the parties.[8][7] General Steel Industries v Commissioner for Railways NSW (1964) 112 CLR 125 at [128].[8] Filsell and Comcare [2009] AATA 90 at [33].