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

The Administrative Appeals Tribunal (AAT) considered an application by the Minister to dismiss an applicant's application for review of a decision to refuse citizenship. The applicant had applied for citizenship by conferral in September 2018. The Minister's delegate refused this application on 7 May 2021, citing a prohibition under section 24(6)(g) of the Act, which relates to circumstances where a court releases a person on security for good behaviour without imposing a sentence of imprisonment, and action can still be taken due to a breach of conditions. The Minister argued that the applicant's application for review had no reasonable prospects of success because the applicant was subject to a Conditional Release Order.

The primary legal issue before the Tribunal was whether the applicant's application for review had no reasonable prospects of success, thereby justifying its dismissal under section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth). This required the Tribunal to determine if the prohibition under section 24(6)(g) of the Act, as applied by the delegate, remained a valid impediment to the approval of the applicant's citizenship application at that time.

The Tribunal reasoned that the applicant was subject to a Conditional Release Order until 21 October 2021, following a contravention of an apprehended violence order on 22 April 2021. Section 24(6)(g) of the Act explicitly prohibits the Minister from approving a citizenship application if, during a period where action can be taken for a breach of security conditions, the person was released by a court without a sentence of imprisonment. As the applicant remained subject to the Conditional Release Order, the prohibition under section 24(6)(g) was engaged, meaning the Minister was lawfully prohibited from approving the citizenship application at the time of the delegate's decision. Consequently, the Tribunal found that the application for review had no reasonable prospect of success.

The Tribunal ordered that the applicant's application for review be dismissed pursuant to section 42B(1)(b) of the AAT Act. The Tribunal noted that the applicant would be able to file a fresh application for citizenship once the Conditional Release Order expired on 21 October 2021, at which point the Minister could consider all relevant criteria anew.