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

[2019] AATA 5399

Madadi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2019] AATA 5399 (13 December 2019)

Division:GENERAL DIVISION

File Number(s):      2019/0809

Re:Armin Madadi

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member M O’Loughlin

Date:13 December 2019

Place:Adelaide

The decision under review is affirmed

.........[Sgnd]......................................

Member M O’Loughlin

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – application for citizenship refused – whether Tribunal is satisfied Applicant is of good character – restriction on approval of a person becoming an Australian Citizen due to current proceedings for an offence -  decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

Road Traffic Act 1961

SECONDARY MATERIALS

Australian Road Rules

REASONS FOR DECISION

Member M O’Loughlin

13 December 2019

1. The Tribunal is asked to review a decision to refuse Mr Madadi’s application for citizenship.

2. The decision under review was made by a delegate of the Minister for Home Affairs on 14 February 2019.

3. The delegate on that occasion refused Mr Madadi’s application for conferral of Australian citizenship under subdivision B of the Australian Citizenship Act 2007 (“the act”)

4. The delegate was not satisfied that Mr Madadi was a person of good character as contemplated by section 21 (2) (h) of the act at the time of the delegate’s decision.

5. The delegate found that the applicant was therefore not eligible to become an Australian citizen.

6. The parties appeared before the Tribunal on 18 November 2019 to give evidence and make submissions in relation to the application for review.  The applicant was assisted by an interpreter in the Persian language.

7. Towards the end of the applicant’s evidence he indicated that there may be a traffic matter that is currently before the courts although the applicant believed that it may not proceed.

8. At the conclusion of evidence and submissions the Tribunal invited the respondent to investigate the status of any outstanding proceedings and to make further submissions within 7 days.

9. On 25 November 2019 the respondent wrote to the Tribunal registry asserting that there are pending proceedings against the applicant for an offence against an Australian law. 

10. Those assertions were supported by an affidavit of Mr Cameron Retallick dated 25 November 2019 to which were annexed copies of email correspondence with the Courts Administration Authority and a Certificate of Record indicating that the applicant had attended Elizabeth Magistrates Court on the 25^th of October 2019 in respect of a charge of exceed speed limit by 20 to 29 km an hour contrary to section 20 of the Australian Road Rules.

11. The Tribunal observes that the Certificate of Record refers to “section 20” of the Australian Road Rules although, strictly speaking, the correct reference would be “rule 20”. The iteration of the Australian Road Rules that applies in South Australia is given its force by s 80 of the Road Traffic Act 1961. The Tribunal is satisfied that an offence against the Australian Road Rules in South Australia is an offence against a law of the State of South Australia.

12. The certificate of record indicates that the matter was adjourned to 9 December 2019 at 2:15 p.m. without a plea being entered to enable Mr Madadi to seek legal advice.

13. The respondent submitted that section 24 (6) (a) of the act operates to prohibit the grant of Australian citizenship while these proceedings are outstanding and that the delegate’s decision must be affirmed.

14. The Tribunal recalled the matter on 11 December 2019 to hear submissions from the applicant in relation to the status of any criminal proceedings.

15. In the meantime the respondent filed a further affidavit from Mr Retallick dated 10 December 2019 and annexing a further certificate of record that relevantly indicated that on 9 December the matter was again adjourned without a plea being entered. On this occasion the adjournment, to the 4^th of February 2020, was described as being “for negotiations”.

16. That was put to the applicant who agreed that there was a speeding matter that he had contested.

17. He said the matter had been mentioned in the Elizabeth Magistrates Court on Monday, 9 December 2019 and had been adjourned by a magistrate who directed him to discuss the matter with the police.

18. The applicant said that he was yet to speak to the police and agreed that the matter is therefore ongoing.

19. The Tribunal advised the applicant that it was likely that the fact of these outstanding criminal matters would require the Tribunal to affirm the delegate’s decision.

20. The Tribunal asked the applicant if there was anything further he wished to say. He asked the Tribunal to take into account that the outstanding proceedings relate only to a speeding matter and are likely to be resolved by a simple fine.

21. He asked the Tribunal to exercise any discretion that it has taking into account his working history and his commitment to this country.

22. The Tribunal relies on the affidavits of Mr Retallick and the annexures thereto[1] and finds that there are proceedings pending against the applicant for an offence against an Australian law as defined for the purposes of s. 24 (6)(a) of the act.

    [1] Administrative Appeals Tribunal Act 1975, section 33(1)(c).

23. The Tribunal observes that s.24(6)(a) prohibits the Minister from approving the applicant becoming an Australian citizen while those proceedings are pending.

24. For the purposes of this review the Tribunal stands in the place of the Minister.[2]

    [2] Ibid, section 43(1).

25. The Tribunal finds that it is prohibited from approving the applicant becoming an Australian Citizen.

26. The Tribunal affirms the delegate’s decision to refuse the applicant’s application to become an Australian citizen by conferral, without considering the question of the applicant’s good character.

I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Member M O’Loughlin

...........[Sgnd]......................................

Associate

Dated: 13 December 2019

Date of hearing:	18 November 2019 and 11 December 2019
Applicant:	In person
Advocate for the Respondent:	Mr C Retallick, Australian Government Solicitor