Shapkin and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2023] AATA 2823

Shapkin and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 2823 (5 September 2023)

Division:GENERAL DIVISION

File Number:          2022/2450

Re:Vladimir Alexandrovich Shapkin

APPLICANT

Minister for Immigration, Citizenship and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date:5 September 2023  

Place:Sydney

The decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs dated 22 March 2022 is affirmed.

..............[Sgd]..........................................................
Mr S Evans, Member

Catchwords

IMMIGRATION AND CITIZENSHIP — Refusal to approve application for citizenship — Appeal against conviction for an offence against Australian law pending —Applicant subject to Community Corrections Order — Tribunal is not required to apply provisions of legislation sequentially — Tribunal must apply relevant law and circumstances in place at the time of review unless indications to the contrary exist — reviewable decision affirmed.

Legislation

Australian Citizenship Act 2007 (Cth)

Cases

Lew v Minister for Immigration and Citizenship [2009] AATA 949

Nelson Guang Lai Shi v Migration Agents Registration Authority [2008] HCA 31

Secondary Materials

REASONS FOR DECISION

5 September 2023

INTRODUCTION

1. The Applicant, Vladimir Alexandrovich Shapkin, is a 39-year-old citizen of New Zealand who was born in Uzbekistan. Mr Shapkin first arrived in Australian on a Special Category (Subclass 444) visa. On 16 August 2019 Mr Shapkin was granted a Partner (Subclass 820) visa and currently holds a Partner (Subclass 801) visa.[1]

   [1] T2/53

2. Mr Shapkin applied for Australian citizenship by conferral on 27 May 2021.[2] On 8 March 2022 Mr Shapkin was invited to comment on adverse information that he had proceedings pending in the Penrith Local Court.[3] On 22 March 2022 a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent; or the delegate) refused Mr Shapkin’s application for Australian citizenship by conferral.[4] The delegate advised they were ‘prohibited from approving’ Mr Shapkin’s application owing to ‘matters outstanding before a court.’[5] On 27 March 2022 Mr Shapkin sought review of the delegate’s decision at the Tribunal.[6]

   [2] T4/117

   [3] T6/126-128

   [4] T7/134-135

   [5] T2/57-58

   [6] T1/1-7

   Conviction and appeal

3. On 1 September 2022 Mr Shapkin was required to appear at the Penrith Local Court for the charges of Destroy or damage property (DV) and Stalk/intimidate intend fear physical etc harm (domestic)-T2. Mr Shapkin was found guilty of the offences and required to pay a fine and sentenced to an 18-month Community Corrections Order (CCO) that will expire on 29 February 2024.[7] 

   [7] Applicant’s National Criminal History Check dated 17 October 2022 (Applicant’s Criminal History Check)

4. On 2 September 2022 Mr Shapkin filed an all-grounds appeal to the District Court.[8] On 13 December 2022 the District Court dismissed the appeal.

   [8] Applicant’s Statement of Facts, Issues and Contentions, [2]

5. On 9 January 2023 Mr Shapkin filed a Notice of Intention to Appeal with the NSW Supreme Court. On 10 January 2023 the NSW Court of Criminal Appeal registry wrote to Mr Shapkin informing him that it was unable to lodge his application as the matter had already been appealed to the District Court. The registry advised Mr Shapkin he may wish to consider asking the District Court to state a case under section 5B of the Criminal Appeal Act 1912 (NSW) on a point of law.

6. On 10 January 2023 Mr Shapkin filed a notice of motion with the District Court of NSW requesting the District Court judge submit a question of law to the Court of Criminal Appeal. Mr Shapkin provided the Respondent with a copy of the motion and short supplementary submissions on 27 January 2023.[9] 

   [9] ST/69-70

   RELEVANT LEGISLATION 

7. The legislation relevant to Mr Shapkin’s application can be found in the Australian Citizenship Act 2007 (Cth) (the Act). 

8. Section 21 sets out the application and eligibility requirements for a person who applies for citizenship by conferral.. Subsection 21(2)(h) provides that the Minister must be satisfied the person is of ‘good character’ at the time of the Minister’s decision.

9. Subsection 24(1) provides that 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. Section 24 provides for circumstances in which the Minister must not approve a person becoming an Australian citizen or may refuse to approve a person becoming an Australian citizen. Subsection 24(6) relevantly provides:

   (6)  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; or

   (b)  when the person is confined to a prison in Australia; or

   (c)  during the period of 2 years after the end of any period during which the person has been confined to a prison in Australia because of the imposition on the person of a serious prison sentence; or

   (d)  if the person is a serious repeat offender in relation to a serious prison sentence—during the period of 10 years after the end of any period during which the person has been confined to a prison in Australia because of the imposition of that sentence; or

   (e)  if the person has been released from serving the whole or a part of a sentence of imprisonment on parole or licence—during any period during which action can be taken under an Australian law to require the person to serve the whole or a part of that sentence; or

   (f)  if the person:

   (i)  has been released by a court from serving the whole or a part of a sentence of imprisonment; and

   (ii)  has been so released because the person gave 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; or

   (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; or

   (h)  during any period during which the person is confined in a psychiatric institution by order of a court made in connection with proceedings for an offence against an Australian law in relation to the person.

   ISSUE TO BE DETERMINED

10. The issue to be determined is whether Mr Shapkin is prevented from becoming a citizen by operation of subsection 24(6) of the Act at the time of the Tribunal’s decision.

    CONSIDERATION

11. Mr Shapkin contends that the delegate made an ‘error of law’ in failing to assess whether he met the ‘good character’ requirement in paragraph 21(2)(h) of the Act before considering if the prohibitions contained in paragraph 24(6)(a) applied. In the absence of a provision stating otherwise, I am satisfied that decision makers, including the Tribunal, are not required to determine each of the eligibility criteria set out in section 21 prior to considering the prohibitions on conferral of citizenship provided in paragraph 24(6).

12. Mr Shapkin submits that when the decision to refuse his application was made in March 2022, the prohibition set out in subsection 24(6)(g) did not apply as he had yet to be sentenced.[10] As the delegate refused his application in March 2022 and Mr Shapkin was sentenced to an 18-month CCO on 1 September 2022, this is not in dispute.

    [10] Transcript of proceedings dated 22 June 2023 (Transcript), 22

13. Mr Shapkin also proposes that the prohibition on the approval provided by subsection 24(6)(a) no longer applies at the time of the Tribunal’s review. In support of his submission Mr Shapkin refers me to the notice of motion he provided to the Penrith Local Court requesting the District Court judge submit a question of law to the Court of Criminal Appeal pursuant to section 5B of the Criminal Appeal Act 1912 (NSW).[11] In his written submissions Mr Shapkin does not elaborate on how the current status of his appeal against his convictions are not proceedings for an offence against an Australian law (including proceedings by way of appeal or review). For now, it is sufficient to acknowledge that Mr Shapkin contends that subsection 24(6)(a) does not apply at this time.

    [11] Transcript, 6-7

14. At the hearing Mr Shapkin referred me to the decision of the Tribunal in Lew v Minister for Immigration and Citizenship (Lew).[12] At the time Mr Lew’s application was under consideration, proceedings for an offence against an Australian law were pending in relation to Mr Lew. Mr Lew’s application was refused by the delegate in July 2009 as the prohibition in subsection24(6)(a) was found to apply.

    [12] [2009] AATA 949

15. Mr Lew sought review of the delegate’s decision. By the time he appeared at the Tribunal, Mr Lew had already been sentenced and there were no longer proceedings for an offence against an Australian law pending. Consequently, the delegate’s reasoning no longer applied. As in the present matter, the Respondent contended that that Mr Lew continued to be barred from conferral of citizenship under section 24 by reason of subsection (6)(g).

16. In considering Mr Lew’s application, Deputy President Tamberlin observed that in Nelson Guang Lai Shi v Migration Agents Registration Authority[13] (Shi) the High Court stated that the Tribunal ‘steps into the shoes’ of the original decision maker and ‘generally speaking, must apply the relevant law and factual circumstances in place at the time the decision is made by the Tribunal, except where there are indications to the contrary.’[14] DP Tamberlin observed at [12]:

    In the present case, there is no indication that the Tribunal should confine its consideration of the law or circumstances to those in place at the time the original decision was made. It is therefore open to the Tribunal to decide whether the citizenship application should be granted, having regard to circumstances and changes in the law that have taken place since the date of the original decision by the delegate.

    [13] Nelson Guang Lai Shi v Migration Agents Registration Authority [2008] HCA 31 (Shi)

    [14] Lew, [11]

17. Citing Shi, Mr Shapkin appears to argue that it is open for the Tribunal to consider the facts as they were at the time of the delegate’s decision to circumvent the bar provided in 24(6)(g), and the facts as they are presently to dispose of the bar provided by 24(6)(a).[15]

    [15] Transcript, 17

18. Having regard to the principles outlined in Shi, I am required to make the correct and preferable decision based on the circumstances as they exist at the present time and in doing so I am obliged to have regard to all the available material before me, including the most current information available.[16]

    [16] Shi, [34] – [47] per Kirby J; [99] – [100] per Hayne and Heydon JJ; [134] per Kiefel J

19. Barring a successful appeal, Mr Shapkin is currently subject to a CCO until 29 February 2024 and as such ‘falls squarely within the provisions of s 24(6)(g) of the Act’ at this time.[17] As such, the correct and preferable decision is to refuse his application.  

    [17] Lew, [13]

    DECISION

20. For the reasons outlined above, the decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs dated 22 March 2022, is affirmed.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of

...........................[Sgd].............................................

Associate

Dated: 5 September 2023

Date of hearing:	22 June 2023
Date final submissions received:	29 June 2023
Applicant:	In person
Solicitors for the Respondent:	Ms C Lewis, Australian Government Solicitor