Omara and Minister for Home Affairs (Citizenship)
[2019] AATA 42
•23 January 2019
Omara and Minister for Home Affairs (Citizenship) [2019] AATA 42 (23 January 2019)
Division:GENERAL DIVISION
File Number(s): 2018/6750
Re:Atef Ibrahim Abedelghany Omara
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:23 January 2019
Place:Sydney
The application before the Tribunal is dismissed under s 42B of the Administrative Appeals Tribunal Act as having no reasonable prospect of success.
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Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – application for citizenship - where applicant subject of good behaviour bond - Minister prohibited from approving citizenship application- inappropriate to adjourn matter until expiry of bond – no reasonable prospect of success – application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
CASES
Bobbe and Minister for Home Affairs (Citizenship) [2018] AATA 2894
Filsell and Comcare [2009] AATA 90
General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125
Lesi v Administrative Appeals Tribunal [2015] FCA 1186
Oliver and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 895
REASONS FOR DECISION
Chris Puplick AM, Senior Member
23 January 2019
DISMISSAL APPLICATION
This is a straightforward matter requiring nothing more than direct application of the relevant provisions of the Australian Citizenship Act 2007 (Citizenship Act).
On 13 April 2018 Mr Omara (the Applicant) came before Bankstown Local Court where, under the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) he was convicted of the offence of “attempt stalk/intimidate intend fear of harm (domestic) T2.”
The Court imposed upon him a bond under s. 9(1) of that legislation which commenced on 13 April 2018 and expires 12 months later on 13 April 2019.[1]
[1] Section 37 Tribunal documents at [179].
Section 24 of the Citizenship Act establishes a scheme whereby people who are not automatically entitled to citizenship may apply for a grant of citizenship. When they do, the Act requires that the Minister must make a decision either to approve or reject the application. The Minister has no discretion in the matter – he must decide one way or the other.
Section 24 (6) (h) of the Citizenship Act is in the following terms:
(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;
There is no discretion in the matter. The law makes it clear that the Minister must not approve a citizenship application, if, at the time when the application decision was made, the applicant was subject to a bond or such restrictions as are set out in the terms of the Citizenship Act.
Mr Omara applied for citizenship on 6 December 2016. However the Department did not process this application until 2 November 2018.
It is unfortunate that there was such a delay in the processing of Mr Omara’s application because, it appears that at the time he lodged it, he may well have been qualified to be granted citizenship under s 21 of the Citizenship Act, although in the absence of corroborative evidence the Tribunal cannot so conclude with absolute certainty.
In any event, by the time that Mr Omara’s citizenship application was processed he had been convicted on an offence which occasioned him being given a good behaviour bond.
This in turn required (again this determination is mandatory) a Delegate of the Minister to conclude that the Applicant was not a person of “good character” which is one of the qualifications which must be met under s 21 of the Citizenship Act (s 21(2)(h)). It is from that decision that the Applicant now appeals to this Tribunal.
This is not a matter where the Minister has any discretion. As the Applicant is subject to a bond, his application must be refused. The Tribunal stands in the shoes of the decision maker in such appeals but it has no more powers available to it than those available to the original decision-maker.
Thus it cannot ignore the provisions of s 24(6) (h) and must reject the citizenship application.
It may be argued that had the decision been made at some time between 6 December 2016 and 12 April 2018 then the Applicant might have been successful. As the Tribunal has said, this is speculative only.
What this does raise however, is whether or not, in some sort of sense of fairness or equity the Applicant should be allowed to pursue his current application and somehow put it “on hold” until after 13 April 2019 which is less than three months away.
Unfortunately for the Applicant, judicial authority on this point is against him. In Lesi the court stated:
“I do not think that the Minister has power to postpone consideration of an application merely on the ground that a bar in paragraph 24(6)(g) will expire in the future.”[2]
[2] Lesi v Administrative Appeals Tribunal [2015] FCA 1186 at [23] per Besanko J.
This decision was recently followed in the cases of Oliver[3] and Bobbe[4] and this Tribunal accepts that it has no capacity to take a different view.
[3] Oliver and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 895.
[4] Bobbe and Minister for Home Affairs (Citizenship) [2018] AATA 2894.
Given that this application must fail because the statute says that it must, the question becomes what order or decision should the Tribunal make?
Section 42B of the Administrative Appeals Tribunal Act 1975 (AAT Act) states:
(1) The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) has no reasonable prospect of success; or
(c) is otherwise an abuse of the process of the Tribunal.
(2) If the Tribunal dismisses an application under subsection (1), it may, on application by a party to the proceeding, give a written direction that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.
(3) The direction has effect despite any other provision of this Act or any other Act.
It is clear that s 42B (1) (b) allows the Tribunal to dismiss any application before it where that application has no prospect of success. However this must be done only sparingly and with great care.[5]
[5] General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125 at [128] per Barwick CJ.
That course is open to the Tribunal in this application and the Minister has applied for the Tribunal to so act. Judicial authority and the objects of the AAT Act itself encourage the Tribunal to act so that futile or inappropriate matters are not before it causing a waste of time and resources to all parties[6] while remembering that the Tribunal is enjoined to act in a way which is “fair, just economical, informal and quick.”[7]
[6] Filsell and Comcare [2009] AATA 90 at [33].
[7] Administrative Appeals Tribunal Act 1975 - section 2A.
The Tribunal notes that a dismissal in these circumstances does not preclude Mr Omara from making another application for citizenship at any time after 13 April 2019.[8]
[8] Lesi v Administrative Appeals Tribunal [2015] FCA 1186 at [23] per Besanko J.
DECISION
The application before the Tribunal is dismissed under s 42B of the Administrative Appeals Tribunal Act as having no reasonable prospect of success.
I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
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Associate
Dated: 23 January 2019
Date(s) of hearing: 23 January 2019 Applicant: By phone Solicitors for the Respondent: Mr N Cuthbert, Clayton Utz (by phone)
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