Sharpe and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2022] AATA 1125
•6 May 2022
Sharpe and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 1125 (6 May 2022)
Division:GENERAL DIVISION
File Number: 2021/7691
Re: Vendee Sharpe Jr
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date of Decision: 6 May 2022
Date of Written Reasons: 12 May 2022
Place:Melbourne
Pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal remits the application to the Respondent for reconsideration.
.......................[sgd].................................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
PRACTICE AND PROCEDURE – decision to refuse citizenship application under s 24(6) of the Australian Citizenship Act 2007 (Cth) – non-compliance by Respondent with Tribunal Direction – withdrawal of pending criminal charge on which citizenship refusal decision was based – reliance on new basis to refuse citizenship – procedural fairness – reviewable decision remitted for reconsideration
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
CASES
Annetts v McCann (1990) 170 CLR 596
Commissioner of Police v Tanos (1958) 98 CLR 383
Re Ego Pharmaceuticals Pty Ltd and Minister for Health and Ageing (2010) 120 ALD 105
Negri v Secretary, Department of Social Services [2016] FCA 879
Re Rahimovski and Commonwealth Bank of Australia (2013) 136 ALD 445
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252
Shi v Migration Agents Registration Authority (2008) 235 CLR 286Twist v Randwick Municipal Council (1976) 136 CLR 106
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
12 May 2022
INTRODUCTION
The Applicant seeks review of a decision by a delegate of the Respondent, dated 18 October 2021, to refuse his application for citizenship under s 24(6) of the Australian Citizenship Act 2007 (Cth) (the Act). The refusal decision was based on the prohibition at s 24(6)(a) of the Act, which precludes the Minister from approving citizenship if an applicant has a pending proceeding for an offence under Australian law. At the time of the refusal decision, it is uncontroversial that the Applicant was yet to answer a charge of unlawful assault as the sole basis for the citizenship refusal decision.
The Applicant is self-represented. The Respondent is represented by Ms Emily Hill of Minter Ellison Lawyers.
For the following reasons, the Tribunal remits the matter to the Respondent for reconsideration pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
BACKGROUND
Between October 2021 and March 2022 this application proceeded under a conferencing process but failed to resolve. On 16 March 2022 the Conference Registrar issued scheduling orders for submission of documents by each party. The matter was subsequently listed for hearing on 7 June 2022. The following then occurred:
(a)7 April 2022: The Respondent failed to provide the Tribunal and the Applicant with a Statement of Facts, Issues and Contentions (SFIC), as directed in the Tribunal’s scheduling orders.
(b)12 April 2022: In response to correspondence from the Tribunal’s Registry asking when a SFIC would be provided, the Respondent advised that: ‘The Minister requires further time and will write to the Tribunal tomorrow to seek an extension of time and to propose a new timetable.’ This did not occur.
(c)21 April 2022 (4:33pm): The Respondent contacted the Tribunal to propose amended scheduling orders, one of which post-dated the hearing. This was because of an erroneous belief that the hearing was on 7 July 2022 instead of 7 June 2022. A Tribunal officer subsequently contacted the Respondent by telephone to correct this misperception and was informed that new dates for submission of materials would be provided in writing. This did not occur.
(d)4 May 2022 (11:19 am): The Tribunal listed a non-compliance Telephone Directions Hearing (TDH) for 6 May 2022, after no further reply was received from the Respondent about scheduling orders. Later that day at 4:24 pm, the Respondent’s legal representative emailed revised submission dates to the Tribunal.
(e)6 May 2022 (11:30 am): A TDH was conducted regarding the Respondent’s non-compliance with Directions. Discussion also ensued on the following matter:
(i)The Applicant had filed a Notice of Order from the Magistrates’ Court of Victoria dated 3 March 2022, that the assault charge against him had been ‘Struckout - Withdrawn’. The Respondent did not contest this but submitted that a different basis for the citizenship refusal decision was now being relied upon, namely an unregistered vehicle infringement the Applicant intends contesting later this year (vehicle infringement matter). The Respondent accepted that the vehicle infringement matter post-dates the citizenship refusal decision and has not previously been put to the Applicant as an alternative basis for citizenship refusal.
(ii)The Tribunal suggested that remittal of the matter under s 42D of the AAT Act may be appropriate because of the altered basis on which the Respondent now relies, and to afford the Applicant procedural fairness.
(iii)Ms Hill requested and was granted an adjournment to seek instructions. Upon resumption, her instructions were to oppose remittal. After hearing from both parties, the Tribunal remitted the matter under s 42D of the AAT Act. Oral reasons were provided, and the Tribunal undertook to make written reasons available.
The Tribunal adopts the reasoning of Bromberg J in Negri v Secretary, Department of Social Services [2016] FCA 879, which considered the extent to which the Tribunal can elaborate upon its oral reasons. His Honour stated at [27]:
...As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).
BASIS OF THE EXERCISE OF POWER
In opposing remittal, the Respondent submitted that:
(a)The matter should proceed to substantive hearing despite withdrawal of the pending assault charge. Reference was made to the Applicant’s intention to contest the vehicle infringement matter, which was proposed as an alternative basis for citizenship refusal.
(b)Because the Tribunal is conducting a de novo review, it ‘does not matter’ that a new pending charge is being relied upon, because it still enlivens the prohibition under s 24(6)(a) of the Act. Ms Hill submitted that by proceeding to hearing the Tribunal could ‘reach a state of satisfaction about whether the prohibition continues to apply by looking at the evidence available at the time of [its] decision’;
(c)The Tribunal’s concerns about procedural fairness could be addressed by inviting the Applicant to make representations about the vehicle infringement matter; and
(d)The two courses available to resolve the application are:
(i)The Tribunal issues new scheduling orders for submission of materials and the matter proceeds to hearing; or
(ii)The Applicant withdraws his current application and makes a new citizenship application once the vehicle infringement matter is resolved.
TRIBUNAL CONSIDERATION
The Respondent has a broad discretion to approve or refuse a citizenship application.[1] In the event of an adverse decision, a notice must be provided to the person that includes reasons for decision.[2] The citizenship refusal decision in this matter was made under s 24(6)(a) of the Act and results solely from the Applicant facing a pending charge of assault. A natural justice letter about this pending charge was previously sent to the Applicant, affording him an opportunity to respond. This charge has since been ‘Struckout – Withdrawn’ by the court and therefore no longer constitutes a basis to refuse the application. It is noteworthy that the refusal decision record states that other requirements like character, residence, identity, and adverse security assessment have not yet been assessed.
[1] Section 24 of the Act.
[2] Section 47(3) of the Act.
Pursuant to s 52(1)(b) of the Act, the Tribunal can review citizenship refusal decisions under s 24 of the Act. The Tribunal stands in the shoes of the original decision-maker when applying the relevant law, based on factual circumstances at the time of the Tribunal’s decision.[3] Regard must be had, however, for statutory preclusions applying to the variation of a review application once submitted, except in a manner permitted by law.[4] Principles of natural justice and procedural fairness must also be considered. Having been afforded an opportunity to respond to the pending assault charge as the basis for refusing his citizenship application, consideration should be given to providing the Applicant an opportunity to respond to the new basis now proposed for the refusal decision. This is particularly so given the vehicle infringement matter post-dates the original refusal.
[3] Shi v Migration Agents Registration Authority (2008) 235 CLR 286.
[4] AAT Act, s 26; Re Rahimovski and Commonwealth Bank of Australia (2013) 136 ALD 445, 454.
The Respondent’s reliance on the vehicle infringement matter as an amended basis to refuse citizenship has not yet been formally communicated to the Applicant. There is no material lodged by the Respondent to support the amended basis relied upon. Moreover, the Respondent’s failure to lodge a SFIC in accordance with the Tribunal’s scheduling orders, means that the rationale for any alternative basis to exercise the citizenship refusal power is opaque at best. It is uncontroversial that when a statute confers a power enabling the rights or interests of an applicant to be defeated, common law principles of natural justice and procedural fairness regulate that power,[5] as do other applicable statutes.[6]
[5] Commissioner of Police v Tanos (1958) 98 CLR 383, 395-6 (Dixon CJ and Webb J); Twist v Randwick Municipal Council (1976) 136 CLR 106, 109-10 (Barwick CJ); Annetts v McCann (1990) 170 CLR 596; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, 258-9 (French CJ, Gummow, Hayne, Crennan, and Kiefel JJ).
[6] Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5(1)(a), 6(1)(a).
Section 42D of the AAT Act confers a discretion on the Tribunal ‘at any stage’ to remit an application to the Respondent for reconsideration, without determining the substantive application.[7] This arises relatively infrequently in citizenship matters. The decision-maker on remittal can affirm, vary, or set aside the decision and make a new decision in substitution.[8] The Applicant can also decide whether to continue with or withdraw their application after considering the outcome. If the decision-maker affirms the decision, or it is affirmed by operation of law,[9] and the Applicant does not withdraw their application, the proceeding resumes in the Tribunal.[10] Having regard to the circumstances of this matter, and the Tribunal’s objective to provide a mechanism of review that is amongst other things fair and just,[11] the discretion under s 42D ought to be exercised in favour of remittal.
[7] Re Ego Pharmaceuticals Pty Ltd and Minister for Health and Ageing (2010) 120 ALD 105, [10].
[8] Section 42D(2) of the Act.
[9] Section 42D(7) of the Act.
[10] Section 42D(8) of the Act.
[11] Section 2A of the AAT Act.
DECISION
Pursuant to s 42D of the AAT Act, the Tribunal remits the reviewable decision to the Respondent for reconsideration.
I certify that the preceding 11 (eleven) paragraphs are a true copy of the written reasons for the decision herein of Senior Member A. Nikolic AM CSC
.......................[sgd].................................................
Associate
Dated: 12 May 2022
Date of interlocutory hearing: 6 May 2022 Applicant, self-represented: By telephone Advocate for the Respondent: Ms Emily Hill Solicitors for the Respondent: Minter Ellison
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