Oliver and Minister for Immigraion and Border Protection (Citizenship)
[2016] AATA 895
•11 November 2016
Oliver and Minister for Immigraion and Border Protection (Citizenship) [2016] AATA 895 (11 November 2016)
Division
GENERAL DIVISION
File Number
2015/6092
Re
Gary Oliver
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 11 November 2016 Place Sydney The reviewable decision of the delegate of the Minister for Immigration and Border Protection made 23 October 2015 to refuse Mr Oliver's application for Australian citizenship is affirmed.
..................[sgd]......................................................
J W Constance
Deputy PresidentCATCHWORDS
CITIZENSHIP - citizenship by conferral - where applicant subject of good behaviour bond - whether applicant released by the court - decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 24(1), 24(6)(g)
Bail Act 2013 (NSW) s 13
Crimes (Sentencing Procedure) Act 1999 (Cth) s 9(1)
REASONS FOR DECISION
Deputy President J W Constance
11 November 2016
INTRODUCTION
Mr Oliver applied for Australian citizenship by conferral on 25 March 2015[1]. His application was made in accordance with the provisions of the Australian Citizenship Act 2007 (Cth). On 23 October 2015 a delegate of the Minister refused the application on the ground that Mr Oliver was the subject of a good behaviour bond as a result of his convictions in the New South Wales Local Court.
[1] Exhibit R1 p.50.
Mr Oliver has applied to the Tribunal to review the delegate’s decision.
For the reasons which follow the decision under review will be affirmed.
FACTS
Unless otherwise stated, the following findings of fact are made on the basis of the evidence of Mr Oliver.
Mr Oliver resides in Australia as the holder of a subclass 856 permanent visa granted on 23 May 2012.
On 20 November 2012 Mr Oliver appeared in the Local Court charged with two offences. He pleaded guilty and was convicted of both offences. A fine was imposed in respect of each offence. Prior to 20 November 2012 he had been on bail to appear on that day.
The Court also made the following order:
The offender is convicted and is directed to enter into a good behaviour bond for 4 years pursuant to Section 9(1) of the Crimes (Sentencing Procedure) Act 1999 to commence on 20 November 2012 and accept the following conditions:
The offender must be of good behaviour and appear before the court during the bond term if required.[2]
[2] Exhibit A1.
Mr Oliver entered into the good behaviour bond as directed and at the time of this decision he continues to be subject to the bond.
ISSUE FOR DETERMINATION
The issue in this matter is whether the fact that Mr Oliver is subject to the bond referred to prevents the Tribunal from granting his application for citizenship, irrespective of whether or not he meets other requirements of the Australian Citizenship Act.
LEGISLATION
Applications for conferral of Australian citizenship are governed by the Australian Citizenship Act 2007 (Cth). Section 24 of the Act provides, in part:
(1) If a person makes an application under section 21, the Minister must, by
writing, approve or refuse to approve the 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…
Provisions of New South Wales legislation relevant to the granting of the bond will be set out later in these reasons.
CONSIDERATION
The argument on behalf of Mr Oliver
It was argued on behalf of Mr Oliver that he was not in custody when he appeared in court on 20 November 2012 and therefore he was not “released” by the Court. As there was no “release” sub-paragraph 24(6)(g)(ii) of the Citizenship Act does not apply and sub-section 24(6) does not prevent conferral of citizenship on Mr Oliver.
Discussion
I do not accept the argument put on behalf of Mr Oliver.
Subsection 13(1) of the Bail Act 2013 (NSW) provides:
(1) A person granted bail, or in respect of whom bail is dispensed with, is required to appear in person before a court, and surrender to the custody of the court, as and when required to do so in proceedings for the offence for which the bail decision is made.
Subsection 13(3) provides:
(3) The time at which a person is required to appear is the time at which the matter relating to the offence is called at court premises (whether or not the matter is dealt with at that time).
When Mr Oliver appeared before the Court on 20 November 2012 to answer the charges his bail came to an end and he was then in the custody of the Court.
The requirement that a person enter a good behaviour bond is an alternative to the imposition of a term of imprisonment. Subsection 9(1) of the Crimes (Sentencing Procedure) Act 1999 (Cth) provides:
(1) Instead of imposing a sentence of imprisonment on an offender, a court may make an order directing the offender to enter into a good behaviour bond for a specified term.
As it is clear that Mr Oliver surrendered to the custody of the Court when he appeared and pleaded guilty, it follows that he was subsequently “released” when he was free to return to the community rather than being sentenced to imprisonment. This occurred when he complied with the direction of the Court by entering the good behaviour bond.
Provided no further action is taken against Mr Oliver in accordance with the condition of the bond, it will expire on 20 November 2016. Until that time action can be taken against him and, in accordance with section 24 of the Citizenship Act, he must not be approved to become an Australian citizen.
CONCLUSION
The reviewable decision of the delegate of the Minister for Immigration and Border Protection made 23 October 2015 to refuse Mr Oliver's application for Australian citizenship will be affirmed.
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance .................[sgd].......................................................
Associate
Dated 11 November 2016
Date of hearing 8 August 2016 Solicitors for the Applicant Mr R Turner; Turner Coulson Immigration Lawyers Solicitors for the Respondent Ms E Warner Knight; Australian Government Solicitor
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