Khan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2021] AATA 3289

Khan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3289 (14 September 2021)

Division:GENERAL DIVISION

File Number(s):      2020/8417

Re:Mohammad Khan

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:14 September 2021

Place:Sydney

The decision under review is affirmed.

.............................[SGD]....................................

Dr L Bygrave, Member

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – where applicant subject to Conditional Release Order – Australian Citizenship [Policy Statement] – Citizenship Procedural Instruction 33 – Minister prohibited from approving application for citizenship – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 40

Australian Citizenship Act 2007 (Cth) ss 21, 24

CASES

Lesi v Administrative Appeals Tribunal [2015] FCA 1186

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

SECONDARY MATERIALS

Australian Citizenship [Policy Statement] (27 November 2020)

Citizenship Procedural Instruction 33 – Prohibitions of Approval under the Citizenship Act (reissued on 17 May 2020)

REASONS FOR DECISION

Dr L Bygrave, Member

14 September 2021

INTRODUCTION

1. The applicant, Mr Mohammad Khan, is 41 years old and a citizen of Bangladesh. Mr Khan first arrived in Australia on 14 May 2005 on a student (subclass 572) visa and he currently holds a skilled (subclass 886) permanent visa that was granted on 28 September 2015.

2. On 8 October 2019, Mr Khan lodged an application for Australian citizenship by conferral in accordance with section 21 of the Australian Citizenship Act 2007 (Cth) (the Act).

3. On 23 November 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) decided to refuse Mr Khan’s application for citizenship on the basis that subsection 24(6) of the Act applied and consequently, Mr Khan was ‘prohibited’ from becoming an Australian citizen.[1]

   [1] Exhibit T-T2, page 40.

4. On 18 December 2020, Mr Khan applied for review of this decision to the General Division of the Administrative Appeals Tribunal (the Tribunal).

5. The matter was heard by the Tribunal in Sydney on 1 September 2021. Mr Khan attended the hearing and gave oral evidence by videoconference.

   RELEVANT LEGISLATION

6. Pursuant to subsection 21(1) of the Act, a person may make an application to the Minister to become an Australian citizen. Subsection 24(1) of the Act states that, if a person makes an application under section 21, the Minister must approve or refuse to approve the person becoming an Australian citizen.

7. Relevant to the determination of this application, subsection 24(6) of the Act includes the following prohibition to a person becoming an Australian citizen:

   (6)  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 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;… [emphasis added]

   Australian Citizenship [Policy Statement]

8. The Australian Citizenship [Policy Statement] (Policy Statement) outlines the overarching legislative requirements for the process of becoming an Australian citizen, and the rights and responsibilities of an Australian citizen. The Policy Statement also provides context for relevant Citizenship Procedural Instructions (CPIs) when making decisions under the Act.

9. The rights and responsibilities of an Australian citizen articulated in the Policy Statement are as follows:

   Australian citizenship is a privilege requiring a continuing commitment to Australia. Australian citizenship is a common bond, involving reciprocal rights and obligations.

   Australian citizenship includes the right to:

   ·apply for an Australian passport and re-enter Australia freely;

   ·ask for consular assistance from an Australian consulate while overseas;

   ·vote in federal, state or territory, and local elections;

   ·vote in a Constitutional referendum or plebiscite;

   ·seek election to parliament;

   ·apply for children born overseas to become Australian citizens by descent; and

   ·apply for a job in the Australian Public Service or in the Australian Defence Force…

   The responsibilities of Australian citizenship include obligations to:

   ·obey the laws of Australia;

   ·vote in federal, state or territory, and local elections, and in a Constitution referendum or plebiscite;

   ·defend Australia should the need arise; and

   ·serve on jury duty if called to do so.[2]

   [2] Australian Citizenship [Policy Statement], section 3.2.

   CPI 33 – Prohibitions on approval

10. CPI 33 – Prohibitions on approval (CPI 33) identifies the circumstances where a decision-maker is prohibited from approving an application to acquire Australian citizenship. Notably, CPI 33 states that a ‘decision-maker must not approve an application if an applicant’s circumstances meet one or more of the requirements set out in subsection 24(6)(a) through (h) of the Act…’[3] [emphasis in original]

    [3] Citizenship Procedural Instruction 33 – Prohibitions on approval, section 7.

11. Section 7.7 of CPI 33 explains the terms used in paragraph 24(6)(g) in relation to ‘offences against Australian law’ in situations where no sentence of imprisonment has been imposed as follows:

    …the terms used…are not defined in the Act and therefore take on their ordinary dictionary meaning. For example:

    -    A security may refer to a written or verbal assurance or undertaking. It may or may not involve a monetary amount.

    -    A surety is a security for the fulfillment of an obligation; a pledge, guarantee, or bond. It may or may not involve a monetary amount.

    -    A recognisance is a bond or obligation of record entered into before a court or a magistrate, binding a person to do a particular act.

    This prohibition applies where a court did not impose a sentence of imprisonment on the person, and 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. The person is subject to the prohibition for the period specified in the Court order during which action can be taken against the person under an Australian law because of a breach of a condition of that security, recognisance or otherwise.

    In cases where a decision maker is aware conditional release or bond will expire within a short period (being a period of two weeks or less), decision-makers may consider delaying a decision until that period has passed. 

12. Although I am not bound to strictly apply the Policy Statement and CPI 33, these comprise government policy and should be considered unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[4]

    [4] [1979] AATA 179; (1979) 2 ALD 634.

    CONSIDERATION

13. The issues for determination are whether:

    ·the prohibition in paragraph 24(6)(g) of the Act applies to Mr Khan’s application for Australian citizenship; and if so,

    ·there is any reason for the Tribunal to delay making a decision.

    Does the prohibition in paragraph 24(6)(g) of the Act apply to Mr Khan?

14. I have regard to the following evidence before the Tribunal:

    ·A report from the Australian Criminal Intelligence Commission dated 23 November 2020 that sets out Mr Khan’s disclosable history as:

    oBurwood Local Court, 24 August 2020. Offence: ‘Common assault (DV)-T2’. Result: $500 fine, severity appeal lodged.

    oDowning Centre District Court, 15 October 2020. Offence: ‘Common assault (DV)-T2’. Result: Order varied ‘Conditional release order w/o conviction: 1 year commencing 15/10/2020 concluding 14/10/2021 no further conditions imposed. The appellant is to contact or report to Burwood Community Corrections Office by next Friday to receive any instructions.’[5]

    [5] Exhibit T-T8, page 103.

    ·A ‘Conditional Release Order’ made by the District Court of NSW on 15 October 2020 in relation to Mr Khan’s offence ‘Common assault (DV)-T2’ that states:

    Order(s) You are found guilty, but without proceeding to conviction, are directed to enter into a Conditional Release Order for 1 year pursuant to Section 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999 [NSW] to commence on 15 October 2020.

    Standard Conditions This Conditional Release Order is subject to the following standard conditions:

    (a) You must not commit any offences.

    (b) You must appear before the court if you are called on to do so during the term of the order.

    This Conditional Release Order is subject to the following additional conditions:

    o   You are subject to supervision by a Community Corrections Officer at Burwood Community Corrections District Office for the period of the Conditional Release Order.

    o   No further conditions imposed…[6] [emphasis in original]

    [6] Exhibit A4.

    ·A ‘Conditional Release Order w/o conviction’ dated 10 November 2020 and signed by Mr Khan on 11 November 2020 that sets out the following conditions:

    Standard conditions

    o   You must not commit any offences.

    o   You must appear before the court if you are called on to do so during the term of the order.

    Further conditions

    No further conditions imposed. The appellant is to contact or report to Burwood Community Corrections Office by next Friday to receive any instructions.

    Suspension conditions

    While your supervision is suspended:

    o   You must notify Community Corrections if you change address or contact details.

    o   You must resume supervision if directed by a community corrections officer.

    o   You should contact Community Corrections if you need help to stop you from re-offending or breaching your order.

    ** This Condition is active from 10/11/2020 to 14/10/2021**[7] [emphasis in original]

    [7] Exhibit A5.

15. In submissions to the Tribunal hearing, Mr Khan disputed the agreed facts in relation to his offending behaviour, and contended that his circumstances should be considered and his application for citizenship granted. Mr Khan said that his circumstances were that he has ‘no prior convictions’ and is ‘not a violent person’, he was ‘wrongly accused’ by his wife, and the outcome in the Court was due to ‘negligence’ by his lawyer.

16. Unfortunately for Mr Khan, his submissions and views in relation to his offending and the Court proceedings are not relevant to the issue I must determine regarding the provisions of paragraph 24(6)(g) of the Act.

17. I have had regard to the Conditional Release Order made by the District Court of NSW on 15 October 2020 and the Conditional Release Order dated 10 November 2020 and make the following findings of fact:

    ·The Conditional Release Order dated 15 October 2020 is consistent with the provisions in paragraph 24(6)(g) of the Act: namely, the Order is made in respect of proceedings for the offence of common assault (domestic violence) in relation to Mr Khan; the District Court did not impose a sentence of imprisonment on Mr Khan, and the Court released Mr Khan on the conditions that he ‘must not commit any offences’ and ‘must appear before the court’ if required to do so ‘during the term of the order’ from 15 October 2020 to 14 October 2021.

    ·The Conditional Release Order made on 10 November 2020 suspended Mr Khan’s supervision conditions but did not otherwise amend the Conditional Release Order dated 15 October 2020.

18. I am satisfied that, as at the date of this decision, Mr Khan is subject to conditions contained in the Conditional Release Order until 14 October 2021.

19. Therefore, pursuant to paragraph 24(6)(g) of the Act, I must not approve Mr Khan becoming an Australian citizen at this time.

    Should the Tribunal delay making a decision until after 14 October 2021?

20. Prior to and at the Tribunal hearing, Mr Khan made submissions for his hearing to be adjourned until after his Conditional Release Order finishes on 14 October 2021. Mr Khan’s apparent rationale for delaying the hearing – and consequently, the Tribunal’s decision – was so the prohibition in paragraph 24(6)(g) of the Act would no longer affect his application for Australian citizenship.

21. In response, the Minister’s representative provided written submissions dated 16 July 2021 and gave extensive oral submissions at the Tribunal hearing.

22. Section 40 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) stipulates the powers of the Tribunal; relevantly, paragraph 40(1)(c) provides that the Tribunal may ‘adjourn the proceeding from time to time’ for the purpose of reviewing a decision.

23. In the decision of Lesi v Administrative Appeals Tribunal, Besanko J considered the general power of the Tribunal to adjourn and the requirement of paragraph 24(6)(g) of the Act. His Honour relevantly stated:

    As I understand it, there is no restriction under the Act on the applicant making another application for citizenship after January 2016. I think the removal of an express power to defer, albeit subject to a time limit, points in the opposite direction to that advanced by the applicant. In other words, it suggests to me that the Minister does not have power to defer consideration of an application. It is true that there is no time limit on the Minister’s consideration of the matter and the complexities in the administrative steps and the information gathering process will vary from case to case. That means that the time periods within which applications will be determined will vary, but that is quite a different thing from the exercise of an express power to defer. 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.

    …It is true that the Tribunal’s general power to adjourn is unconfined in its terms, but it seems to me that there would need to be something in the Act to suggest that the future occurrence of an event identified in s 24(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.[8] [emphasis added]

    [8] [2015] FCA 1186 [23]-[24].

24. I concur with Besanko J’s reasoning that the Tribunal’s power to adjourn a proceeding under paragraph 40(1)(c) of the AAT Act should not be enlivened merely to allow the Conditional Release Order made on 15 October 2020 – and therefore, the prohibition in paragraph 24(6)(g) – time to expire.

25. My reasons for this view are embedded in the provisions of the AAT Act and the Act.

26. Firstly, section 2A of the AAT Act states the Tribunal’s objective as follows:

    2A In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:

    (a)  is accessible; and

    (b)  is fair, just, economical, informal and quick; and

    (c)  is proportionate to the importance and complexity of the matter; and

    (d)  promotes public trust and confidence in the decision‑making of the Tribunal.

27. I note that Mr Khan filed his application for review with the General Division of the Tribunal on 18 December 2020, a date approximately two months after the District Court found him ‘guilty but without proceeding to conviction’ and made a Conditional Release Order for one year pursuant to section 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999.

28. Mr Khan’s application has proceeded through the usual processes for review within the Tribunal, which included his matter being heard on 1 September 2021. I have heard and decided his matter within usual timeframes, and I am satisfied that any delay of my decision would be inconsistent with the Tribunal objective to provide a mechanism of review that is ‘fair, just, economical, informal and quick’ and ‘promotes public trust and confidence in the decision‑making of the Tribunal’.

29. Secondly, to adjourn my decision until after Mr Khan’s Conditional Release Order expires on 14 October 2021 would be contrary to the intent of the provisions contained in subsection 24(6) of the Act. These provisions articulate clear events that prohibit a person becoming an Australian citizen at a particular time. I further note there is nothing to prevent Mr Khan from making a new application for Australian citizenship by conferral after his Conditional Release Order expires.

30. For these reasons, I have not delayed my decision until after 14 October 2021.

    DECISION

31. The decision under review is affirmed.

I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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Associate

Dated: 14 September 2021

Date(s) of hearing:	1 September 2021
Applicant:	In person
Solicitors for the Respondent:	Ms Mia Donald, Sparke Helmore Lawyers