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

[2021] AATA 2721

PFJB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2721 (5 August 2021)

Division:GENERAL DIVISION

File Number(s):      2021/3689

Re:PFJB  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:The Hon. Dennis Cowdroy AO QC, Deputy President

Date:5 August 2021  

Place:Sydney

The application for review is dismissed pursuant to section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) as the Tribunal is satisfied that the application for review has no reasonable prospect of success.

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The Hon. Dennis Cowdroy AO QC, Deputy President

CATCHWORDS

CITIZENSHIP – application for citizenship – application to dismiss application for review – no reasonable prospect of success – where applicant subject to Conditional Release Order – Minister prohibited from approving application for citizenship – application dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

Migration Act 1958 (Cth)

CASES

Al-Ahmed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 963

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

Kevin Jones (previously known as Sarmad Jaderi) and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020) AATA 3680

Lesi v Administrative Appeals Tribunal (2015) FCA 1186

Minister for Immigration and Citizenship v Hassani (2017) 219 FCR 144

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Re-Commonwealth of Australia; Ex-Parte Marks (2000) 177 ALR 481; [2000] HCA 67

Sarris v Penfold’s Wines Pty Ltd [1962] NSWR 801

Yates Security Services Pty Ltd v Keating (1990) 98 ALR 21

SECONDARY MATERIALS

Citizenship Procedural Instructions

Explanatory Memorandum to the Citizenship Bill 2005

REASONS FOR DECISION

The Hon. Dennis Cowdroy AO QC, Deputy President

5 August 2021

1. The applicant, by Application for Review of Decision filed on 3 June 2021, seeks a review of a decision of a delegate of the respondent (“the Minister”) to refuse the applicant’s application for Australian citizenship under the Australian Citizenship Act 2007 (Cth) (“the Act”). The application was refused on the basis that the Minister was prohibited from approving the application as the applicant is subject to a Conditional Release Order for an offence against Australian law, such prohibition as provided by s 24(6)(g) of the Act.

2. The Minister has applied to the Tribunal to strike out the applicant’s Application for Review, pursuant to s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) which empowers the Tribunal to dismiss an application for review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application has no reasonable prospects of success: see s 42B(1)(b). The Minister’s strike out application is made on the basis that the applicant remains the subject of a Conditional Release Order and as such the Application for Review must fail.

   RELEVANT FACTS

3. The applicant first arrived in Australia in September 2010 as an irregular maritime arrival. The applicant did not hold a visa. In October 2011, the applicant was granted a permanent Protection (Subclass 866) Visa. In March 2018, the applicant was granted a Resident Return (Subclass 155) Visa which the applicant retains.

4. In September 2018, the applicant lodged an application for Australian Citizenship by Conferral.

5. On 22 April 2021 the applicant was found to have contravened a prohibition/restriction in an Apprehended Violence Order and was released subject to a Conditional Release Order which was ordered to be in force until 21 October 2021.

6. The application made in September 2018 was refused by the Minister’s delegate’s decision made on 7 May 2021 and is the subject of the applicant’s Application for Review of Decision.

7. The delegate’s decision found that the prohibition in s 24(6)(g) of the Act applied, in that there were matters outstanding before a court.

   LEGISLATION

8. Section 24 of the Act relevantly provides:

   (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 the conditions relating the personal 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;

   …

   CRIMINAL OFFENCES

9. A National Criminal History Check created on 7 May 2021 revealed that the applicant has the following criminal history:

   ·22 April 2021: Burwood Local Court: contravene prohibition/restriction in AVO (domestic); resulting in a Conditional Release Order without conviction for six months commencing 22 April 2021 and concluding 21 October 2021.

   ·23 February 2015: Parramatta Local Court: drive with middle range PCA; resulting in a fine of $700 and disqualification as a driver for 10 months.

10. It follows that the applicant remains the subject of the Conditional Release Order until 21 October 2021.

    MINISTER’S APPLICATION

11. The Minister has applied to the Tribunal pursuant to s 42B(1)(b) of the AAT Act for the dismissal of the Applicant’s Application for Review. That section relevantly provides:

    (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:

    …

    (b) has no reasonable prospect of success.

12. The Minister submits that the application has no reasonable prospect of success because the Tribunal is prohibited from approving the applicant’s citizenship application because of s 24(6)(g) of the Act resulting from the Conditional Release Order which remains in force until 21 October 2021.

    APPLICANT’S REPLY

13. The applicant seeks a direction that the matter before the Tribunal be adjourned until a date after the expiration of the applicant’s Conditional Release Order. In support of such direction the applicant makes the following submissions challenging the Minister to the relief sought:

    (a) Tribunal’s discretion

    Section 40 of the AAT Act specifically provides for adjournment of matters which come before the Tribunal. That section relevantly provides:

    (1)   For the purpose of reviewing a decision, the Tribunal may:

    …

    (c) adjourn the proceeding from time to time.

14. The applicant submits that since the applicant will be eligible to apply for citizenship after 21 October 2021, the Tribunal should exercise its power to adjourn the proceedings.

    (b) Unreasonable to refuse adjournment

15. The applicant submits that it would be unreasonable to refuse an adjournment taking into consideration that:

    i.the applicant is a former refugee “with declining mental health”. The applicant relies upon a psychologist’s report dated 24 July 2021, which refers to the applicant’s psychological condition;

    ii.the applicant is illiterate in English; and

    iii.the adjournment will not be for an indefinite period, but to a date after 21 October 2021 (being the ‘known date when the [applicant] will satisfy the criterion for citizenship’).

    (c) Inconsistent provisions

16. The applicant notes the Citizenship Procedural Instruction 33 (“CPI 33”) which the Tribunal observes is stated to outline “the overarching legislative requirements for the process of becoming an Australian citizen”. Clause 7.7 thereof specifically envisages that in circumstances where, as in the present, the applicant is the subject of a conditional release or bond, it may be appropriate to postpone consideration of the application. Clause 7.7 of the CPI 33 states, inter alia:

    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.

17. The respondent submits that CPI 33 comprises a policy which provides guidance concerning the interpretation and exercise of the powers under the Act and should be applied unless there are cogent reasons for not doing so: see Drake v Minister for Immigration and EthnicAffairs (No 2) (1979) 2 ALD 634; [1979] AATA 179, per Brennan J.

    (d) Legal principles

18. The applicant submits that an authority relied upon by the respondent, namely Lesi vAdministrative Appeals Tribunal (2015) FCA 1186 adopted a previous decision by the same decision-maker (Besanko J) in Minister for Immigration and Citizenship vHassani (2017) 219 FCR 144 where Besanko J found that the exercise of power to adjourn or defer under section 14A of the Act had miscarried; and that an adjournment of a citizenship application should not be granted whilst criminal charges were pending against an applicant. The applicant submits that the better view is that stated by the High Court of Australia in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, namely that where it would be unreasonable not to exercise discretion to grant an adjournment, the decision would deny procedural fairness and as such would constitute jurisdictional error.

    FINDING

19. The Tribunal, when hearing an Application for Review, is bound by the statutory provisions under which the Minister fulfils his statutory obligations. Accordingly, the Tribunal, when hearing an application for citizenship pursuant to section 21 of the Act, may approve or refuse an application as is provided by the statutory provisions of the Act. The Tribunal in the review is substituted for the Minister for the purposes of the Act and is bound by the provisions of the Act.

20. The provisions of section 24(6) contain a prohibition upon the Minister, and therefore upon the Tribunal, in granting an application where the requirements of that subsection are fulfilled. In this event the Tribunal is bound to refuse an application. The provisions of section 24(6) are explicit and provide no discretion to the Minister (and accordingly to the Tribunal) if the circumstances are found to exist.

21. Whilst the applicant refers to the provisions of section 40 of the AAT Act, it is a well-established principle that the provisions of a general statute give way to a specific provision in another statute: see Sarris v Penfold’s Wines Pty Ltd [1962] NSWR 801; see also YatesSecurity Services Pty Ltd v Keating (1990) 98 ALR 21. Accordingly, the general provisions contained in section 40 of the AAT Act which allow the Tribunal to grant an adjournment has no application where s 24(6)(g) applies since that subsection provides no discretion to the Minister: the Minister must refuse an application in circumstances referred to in s 24(6)(g). In Lesi at [20] and [23]-[24], Besanko J said, relevantly (emphasis added):

    … However, I held that the general power to adjourn was effected by the provisions of the Australian Citizenship Act 1948. I said that if an application was made to adjourn or defer an application for review on the ground that a charge was pending, it was appropriate that the decision-maker proceed under s 14A of the Australian Citizenship Act 1948 rather than the general power to adjourn in s 40(1) of the AAT Act.

    ….

    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.

    I think that this case is, in one sense, stronger than that in Hassani because there is in this case no express power to defer.  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. I will follow my decision in Hassani.

22. The applicant suggested there was an analogy between the provisions of section 363 of the Migration Act1958 (Cth) and the provisions of the Act. Section 363 of the Migration Act specifically provides:

    (1) For the purpose of the review of a decision, the Tribunal may:

    …

    (b) adjourn the review from time to time; …

23. However, there is no such equivalent provision in the Act.

24. The applicant also referred the Tribunal to the decision of the Federal Court of Australia in Al-Ahmed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 963. In those proceedings an applicant sought an extension of time under section 44(2A) of the AAT Act. An extension of time was granted after the Court decided that the matter should be referred to the Full Court in view of a submission that Lesi was wrongly decided. However, it is not known whether any determination has been made and accordingly Lesi remains the current authority on this question. This decision has already been followed in this Tribunal: see Kevin Jones (previously known as Sarmad Jaderi) and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020) AATA 3680 at [17].

25. The applicant’s reliance upon CPI 33 does not assist. The provisions of CPI 33 have no application when a statutory provision makes specific provision in respect of the particular subject matter, as does section 24(6)(g). The Applicant is subjected to a Conditional Release Order until 21 October 2021. As such, the requirements of section 24(6)(g) are enlivened.

26. The Tribunal notes the fact that the applicant’s Conditional Release Order will expire in approximately three months’ time. As above, Besanko J in Lesi noted that “the Minister does not have the power to postpone consideration of an application merely on the ground that a bar in section 24(6)(g) will expire in the future” and 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.”

27. Paragraph 7.7 of the CPI 33 states that matters should only be delayed for a “short period of time, being two weeks or less”. Here the delay or postponement would be approximately three months. The Minister submits that such a delay would undermine the public interest in the finality of administrative decision-making if such a delay was permitted, as discussed in Re-Commonwealth of Australia; Ex-Parte Marks (2000) 177 ALR 481; [2000] HCA 67 at [15] – [17] per McHugh J.

28. The Minister also draws attention to the Explanatory Memorandum to the Citizenship Bill 2005 which states:

    Proposed paragraph (g) is new. It prohibits an approval of a citizenship application during any period where a person has been released by a court upon the person giving a relevant security and during any period in which action could be taken in respect of the person under a law of the Commonwealth, a State or a Territory by reason of a breach of a condition of that security.33.

29. In Lesi, Besanko J referred to the decision of the High Court in Li: see paragraph [19] of Lesi. The decision of the High Court was not overlooked, as was submitted to the Tribunal.

30. The Tribunal respectfully adopts the reasoning of Besanko J and considers that it is bound in any event by his Honour’s decision which is directly relevant to the present circumstances.

31. The applicant’s reliance upon the decision of the High Court in Li is misplaced. In that matter there was a discretion granted to the decision-maker whether to grant an adjournment; in the present circumstances the Minister has no discretion, rather he is prohibited from granting the application for citizenship.

32. It follows that no question of unreasonableness can arise where there is no discretion. Accordingly, any issues concerning the health of the applicant and the applicant’s claimed illiteracy are not pertinent to the matter. In making these observations, the Tribunal notes that, in so far as a medical evidence is concerned, the psychologist certificate is of little weight. The psychologist was not consulted until after the Minister made his application to dismiss these proceedings; there is no evidence of any medical history prior to the single consultation which the applicant held with the psychologist; there is no evidence of any ongoing medical treatment except that the applicant might benefit from “psychological intervention” in the next 12 to 18 months.

33. Insofar as the claim of illiteracy is relied upon, such statement conflicts with the fact that the applicant has undergone a test and has passed the citizenship test, which infers that he has at least a limited knowledge of the English language.

    CONCLUSION

34. The Tribunal finds that since it has no prospect of granting the Application for Review, and it had no such power at the time the Application for Review was made, the applicant’s application should be dismissed. It was incompetent from the outset. It can serve no purpose in view of s 24(6) of the Act.

35. The applicant will be able to file a fresh application for citizenship if the Conditional Release Order expires on 21 October 2021 at which point another decision can be made by the Minister with regard to all the relevant criteria for citizenship.

    DECISION

36. The Application for Review is dismissed pursuant to section 42B(1)(b) of the AAT Act as the Tribunal is satisfied that the application for review has no reasonable prospect of success.
    
    

I certify that the preceding 36 (thirty six) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy AO QC, Deputy President

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Associate

Dated: 5 August 2021

Date of hearing: 26 July 2021

Applicant’s counsel: Mr P Cutler

Respondent’s solicitor: Ms E Hill, MinterEllison