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

[2021] AATA 4644

Poudel and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4644 (15 December 2021)

Division:GENERAL DIVISION

File Number(s):      2021/4566

Re:Ramjee Poudel

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member West

Date:15 December 2021

Place:Melbourne

The application is dismissed under s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).

.........................[sdg]...............................................
Member R West

Catchwords

CITIZENSHIP – application refused under s 24(6) of the Citizenship Act – pending proceedings for an offence against an Australian law – proceedings pending at time of hearing – no reasonable prospect of success – application dismissed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

REASONS FOR DECISION

Member R West

15 December 2021

1. The decision under review is the decision a delegate of the Respondent not to approve an application for Australian citizenship by conferral lodged by the Applicant under s 21 of the Australian Citizenship Act 2007 (Cth) (Act).

   BACKGROUND

2. The Applicant is a Nepalese citizen. He is currently the holder of a Resident Return (BB-155) visa, which was granted on 16 December 2015.

3. On 20 April 2020, the Applicant lodged an application for conferral of Australian citizenship.

4. On 10 June 2021, the delegate refused the application for Australian citizenship by conferral as she found there were “proceedings for an offence against an Australian law” pending against the Applicant and he was subject to the prohibition in s 24(6) of the Act.[1]

   [1] T2, p 7-16.

5. Section 24(6) of the Act provides, in part, that (emphasis added):

   The Minister must not approve the person becoming an Australian citizen at a time:

   (a)    when proceedings for an offence against an Australian law (including proceedings by way of appeal or review) are pending in relation to the person;

   ...

6. On 6 July 2021, the Applicant lodged an application for review of the delegate’s decision with the Tribunal.

   APPLICATION TO DISMISS

7. The Respondent submitted to the Tribunal that the Applicant’s pending Court proceedings mean that the application for review has no reasonable prospect of success and should be dismissed under s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

8. Section 42B(1)(b) of the AAT Act provides that 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 has no reasonable prospect of success.

9. A hearing in relation to the Respondent’s dismissal application was conducted by telephone on 14 December 2021. The Applicant was self-represented. The Respondent was represented by Mr Thomas Creedon, a solicitor with the Australian Government Solicitor.

10. The documents lodged with the Tribunal under s 37 of the AAT Act (T Documents) include an Australian Criminal Intelligence Commission check which establishes that on 10 December 2020 the Applicant was charged with obtaining financial advantage by deception and that as at 26 May 2021 the charges were pending. [2]

    [2] T6,  p.59-60.

11. The Respondent also tendered a Magistrates’ Court of Victoria ‘Electronic Filing Appearance System’, showing that proceedings against the Applicant are listed for mention in the Broadmeadows Magistrates’ Court at 9.30am on 21 March 2022.

12. At the hearing the Applicant confirmed that he had been charged with obtaining financial advantage by deception, and that the matter was listed for a mention hearing before the Broadmeadows Magistrates’ Court at 9.30am on 21 March 2022.

13. In his appeal application the Applicant stated that:

    I am a travel agency business owner and was massively affected by Covid 19. One of my customer(s) had made an allegation against me for undelivered goods and services. She has made a complaint in police as a result I was questioned by a police (sic). I have made an arrangement with the complainant however the police has (sic) not dropped the charge yet.

14. At the hearing the Applicant added that the proceeding had been adjourned from 25 November 2021 and that he had been told that the charge against him would be dropped.

15. Clearly, if the review application is determined by the Tribunal before 21 March 2022 the application must fail. Section 24(6) of the Act is mandatory in nature.  It obligates the Minister, and in this context the Tribunal, to refuse an application for citizenship if proceedings for an offence against an Australian law are pending against an Applicant at the time of the decision.

16. The Applicant urged the Tribunal to defer its consideration of his review application until after 21 March 2022, when he expects that the charge against him will be dismissed.  The Respondent submitted that it is unclear whether the proceedings against the Applicant would be finalised on 21 March 2022 and what was sought by the Applicant was in effect an indefinite adjournment.

17. The Tribunal is satisfied that the ordinary course of its business would enable the hearing of the review application to be concluded well before 21 March 2022.  The only justification for deferring the hearing beyond that date would be to assist the Applicant to possibly avoid the operation of s 24(6) of the Act.

18. The Tribunal’s objective under s 2A of the AAT Act is to provide a mechanism of review which is fair, just, economical, informal, quick, and which promotes public trust and confidence in its decision-making. It would not serve this objective for the Tribunal to contrive a hearing date for the sole purpose of assisting the Applicant to avoid the operation of the Act.

19. The Tribunal is also mindful that the Applicant may renew his application for citizenship once the proceedings before the Magistrates’ Court are resolved.

    CONCLUSION

20. As the Applicant has conceded that there is a proceeding for an offence against an Australian law pending against him, which is to be heard on 21 March 2022, and that there is no reasonable basis for the Tribunal to defer the listing of the review application until after 21 March 2022, the Tribunal is satisfied that the review application has no reasonable prospect of success and it should be dismissed under s 42B(1)(b) of the AAT Act.

    DECISION

21. The application is dismissed under s 42B(1)(b) of the AAT Act.

I certify that the preceding 21 (twenty one) paragraphs are a true copy of the reasons for the decision herein of Member R West

...[sgd]..................................................................

Associate

Dated: 15 December 2021

Dates of hearing:

14 December 2021

Applicant:

Self-Represented

Solicitor for the Respondent:

Advocate for the Respondent:

Australian Government Solicitor

Mr Thomas Creedon