Leafaitulagi Matauaina and Minister for Immigration and Border Protection
[2013] AATA 844
[2013] AATA 844
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/3140
Re
Leafaitulagi Matauaina
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President PE Hack SC
Date 20 November 2013 Place Brisbane The application is dismissed pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth).
.......................[Sgd].................................................
Deputy President PE Hack SC
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – Application for citizenship – 2 years not passed since release from prison – Prohibited from granting citizenship – No utility in proceedings – Application dismissed
LEGISLATION
Australian Citizenship Act 2007, s 24(6)(c)
REASONS FOR DECISION
Deputy President PE Hack SC
20 November 2013
The applicant, Ms Leafaitulagi Matauaina, seeks a review of a decision of a delegate of the respondent, the Minister for Immigration and Border Protection, made on 17 May 2013 to refuse her application for Australian citizenship.
By this application the Minister seeks an order that the proceedings be dismissed pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth). The basis of the Minister's argument is that, regardless of the merits of Ms Matauaina’s application, the Australian Citizenship Act 2007 (Cth) (the Act) prohibits a grant of citizenship to Ms Matauaina within the foreseeable future. In my view the Minister’s application ought succeed and the application be dismissed.
It is enough for present purposes to note that Ms Matauaina was sentenced to a term of imprisonment in March 2011. By that order the sentencing judge directed that the date for her to be released on parole be fixed at 31 December 2012. It is common ground that Ms Matauaina was released from prison on that date.
By virtue of s 21 of the Act, a person may make an application to the Minister to become an Australian citizen. A person is eligible to become an Australian citizen if the Minister is satisfied that the person meets the eligibility criteria set out in s 21(2) of the Act. But, in addition to the matters of which the Minister must be satisfied, the Act sets out circumstances where the Minister must not approve the person becoming an Australian citizen in s 24(6). So far as is presently relevant the subsection reads,
(6)The Minister must not approve the person becoming an Australian citizen at a time:
…
(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;
…
The expression “serious prison sentence” is defined in s 3 of the Act as meaning a sentence of imprisonment for a period of at least 12 months. The sentence imposed on Ms Matauaina in March 2011 satisfied that description. She was released from prison on 31 December 2012. Accordingly, and by operation of s 24(6)(c) of the Act, the Minister, and the Tribunal in his stead, must not approve Ms Matauaina becoming an Australian citizen in the period of two years after the end of her release from prison, that is, before 31 December 2014.
In those circumstances there is no utility in the proceedings and it would be futile for them to continue. The Minister had advanced further reasons why the period during which Ms Matauaina may not be granted citizenship would be extended for a period of 10 years after her release from prison. I have not found it necessary to consider the correctness of that argument.
I certify that the preceding 5 (five) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC ..........................[Sgd]..............................................
Associate
Dated 20 November 2013
Date(s) of hearing 20 November 2013 Applicant In person Solicitors for the Respondent Clayton Utz
0
0
0