Soman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 5761
Soman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 5761 (2 November 2020)
Division:GENERAL DIVISION
File Number: 2020/4940
Re:Mr Vaibhav Vasant Soman
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
INTERLOCUTORY DECISION
Tribunal:Ms A E Burke AO, Member
Date of decision: 2 November 2020
Date of written reasons: 27 November 2020
Place:Melbourne
The Tribunal refuses:
1. the Respondent's request to dismiss the application under section 42B of the Administrative Appeals Tribunal Act 1975; and
2. the Applicant’s request for an extension of time until after his Magistrate’s Court date.
[sgd]........................................................................
Ms A E Burke AO, Member
Catchwords
CITIZENSHIP - citizenship by conferral – application for extension of time – application for dismissal under s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 – prohibition to approve application for citizenship under section 24(6)(a) of the Australian Citizenship Act 2007 – Tribunal must apply relevant law and circumstances in place at the time of review – refusal to grant dismissal application – not reasonable in all the circumstances to allow extension of time or to dismiss the matter
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Sentencing Act 1991 (Vic)Cases
Hunter Valley Developments Pty Ltd v Cohen (1984) 58 ALR 305
Kevin Jones and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3680
Lesi v Administrative Appeals Tribunal (2015) 238 FCR 145
Minister for Immigration and Citizenship v Hassani (2007) 219 FCR 144Mahmoud and Anor and Minister for Immigration and Border Protection [2014] AATA 824
Secondary Materials
Department of Immigration and Border Protection, Citizenship Policy (1 June 2016)
REASONS FOR DECISION
Ms Anna Burke, AO Member
27 November 2020
INTRODUCTION
Mr Soman (the Applicant) is appealing against the decision of a delegate of the Minister for Home Affairs, dated 20 July 2020 to refuse his application for Australian citizenship by conferral under section 24(6)(a) of the Australian Citizenship Act 2007 (the Act).
On 15 August 2020 Mr Soman applied to the Administrative Appeals Tribunal for a review of the delegate’s decision and an extension of time, outlining why he considered the decision was wrong, stating:
Mr Soman denies the charges and allegations mentioned and is contesting the charges in court. He firmly believes that the charges will be dropped against him as he hasn’t committed any wrongdoing and he will be clear of the charges at the court hearing. On this basis, he wants to apply for the AAT review of the decision and also would like to request the Presiding Member of the Administrative Appeals Tribunal to wait for the review till the hearing at the Magistrates Court in the next couple of months, which will allow him to satisfy the requirements under paragraph 24(6)(a) of the Australian Citizenship Act 2007.
On 9 October 2020 the Respondent made an application for dismissal pursuant to section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (AAT Act). The application was heard by telephone on 5 November 2020. Mr Soman was represented by Mr Harkirat Singh of Bestway Migration Solutions and Mr Christopher Orchard, of Sparke Helmore Lawyers appeared for the Respondent.
The Tribunal provided an oral decision at the hearing determining not to dismiss the matter or grant Mr Soman an extension of time. Mr Orchard has subsequently requested written reasons for the decision in accordance with section 43(2A) of the AAT Act. These are those reasons.
THE ISSUE IN CONTENTION
The issues in contention are whether:
(a)Mr Soman should be granted an extension of time to have his matter heard after his current criminal proceedings which prohibit him from becoming a citizen by conferral pursuant to section 24(6)(a) of the Act;
(b)the matter should be dismissed because it has no reasonable prospects of success.
BACKGROUND
Mr Soman is a 48-year-old Indian National who first arrived in Australia on 18 November 2012 as the holder of a Business (Short Stay) Visa (subclass 456) and subsequently on 23 March 2017 was granted a Permanent Skilled Independent Visa (subclass 189).
On 9 June 2019 Mr Soman applied for Australian citizenship by conferral.
On 26 July 2019 Mr Soman was charged with ‘sexual assault’ and ‘unlawful assault.’ These charges are pending an outcome as they are yet to be determined by a court.
On 20 July 2020 Mr Soman was notified that a delegate of the Minister refused his application for Australian citizenship by conferral, as the delegate was prohibited from approving the application under section 24(6)(a) of the Act, because Mr Soman had matters outstanding before a court.
On 15 August 2020 Mr Soman sought an adjournment of the hearing and to have the matter listed after the next Magistrates Court of Victoria hearing/decision so that fair review of his citizenship application can take place.
On 9 October 2020 Mr Orchard on behalf the Minister requested the Tribunal dismiss the application in accordance with section 42B(1)(b) of the AAT Act as the application had no real prospects of success.
Relevant Legislation
Section 21(2) of the Act sets out the general eligibility criteria for a person to become an Australian citizen:
General eligibility
A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister’s decision on the application.
Section 24(6) of the Act provides 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;
CONSIDERATION
The AAT Act provides the Tribunal with a broad discretion power to grant an extension of time if it is satisfied that it is reasonable in all the circumstances to do so. The AAT Act does not provide guidance on what is reasonable, however the Tribunal has been guided by the principles outlined in Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 344:
17. Section 11 of the Administrative Decisions (Judicial Review) Act does not set out any criteria by reference to which the Court's decision to extend time for an application for review under s.5 is to be exercised. Already there have been a number of decisions of Judges of this Court, all sitting at first instance, dealing with the approach proper to be taken. They differ a little, both in language and in emphasis, but I venture to suggest that from them may be distilled the following principles to guide, not in any exhaustive manner, the exercise of the Court's discretion:
18. (a) Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the Court will not grant the application unless positively satisfied that it is proper so to do. The "prescribed period" of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at p 550) Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at p 416) It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time (Duff at p 485; Chapman v Reilly, Neaves J, 9 December 1983, not reported, at p 7).
Mr Orchard contended it would not be a proper exercise of the Tribunal’s powers and discretion to defer the determination of the matter on the basis that there may be a future date where prohibitions may no longer exist. Mr Orchard argued that in Lesi v Administrative Appeals Tribunal [2015] FCA 1186 (Lesi), Besanko J held that a decision maker does not have “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” (at [23]) and that “there would need to be something in the Act to suggest that the future occurrence of an event identified in s24(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” (at [24]). Besanko J followed his previous decision in Minister for Immigration and Citizenship v Hassani (2007) 219 FCR 144: “The exercise by the Tribunal of its general power to adjourn miscarried because it was not entitled to take into account the pending charge in considering whether to adjourn” (at [37]).
Mr Orchard argued that the Tribunal has no discretion to postpone the hearing of the substantive application pending the finalisation of the pending charges, referring the Tribunal to the matter of Kevin Jones and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3680 at [17] which applied Lesi. Mr Orchard contended that the Tribunal should not acquiesce to Mr Soman’s request for an adjournment on the basis of the binding authority outlined above and sought that the matter be dismissed pursuant to section 42B(1)(b) of the AAT Act.
Mr Singh argued Mr Soman was at a distinct disadvantage as his criminal proceedings have been postponed on numerous occasions because of COVID-19 restrictions in Victoria. He advised that Mr Soman’s hearing was now listed at the Magistrates court on 16 March 2021 and his criminal lawyer has made a request to pre-pone the hearing. Mr Singh argued that to not allow an extension of time in the matter was unfair to Mr Soman as he continued to protest his innocence and he was hopeful the charges would be dropped in court.
Mr Singh argued Mr Soman was a person of good character as he:
·has never been charged or convicted before, in India or Australia, and he has always abided by the law in both countries;
·is happily married to his wife for 18 years and has 2 children, is a family person committed to a better future for his family and shares a strong relationship with his wife and children;
·is an accounting professional (financial analyst) who is held in high regard by his colleagues and professional bodies, has a strong work ethic and is always professional in his approach to work;
·is financially responsible and is not involved in any frauds;
·has always been a community-oriented person and tries to help people who are in need. He volunteers with the Hindu Council of Australia and has tried his best to help international students during the COVID19 pandemic whilst struggling with job loss himself, and has been fundraising and supporting people in need;
·is seeing a psychologist for counselling, as the charges and proceedings have had a significant impact on his mental health, as it is his first encounter with the criminal justice system; and
·firmly believes that the current charges and refusal based on the proceedings is not based on the true reflection of his character.
The Tribunal determined it would not be reasonable in all the circumstances to grant an adjournment to allow for a hearing date to occur after Mr Soman’s criminal matter had been dealt with in the courts. The Tribunal relied upon the decision of Besanko J in Lesi where his Honour found:
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.
Mr Orchard contended the Tribunal should dismiss the matter in accordance with section 42B(1)(b) of the AAT Act as the application had no real prospects of success, as section 24(6) of the Act prohibits the Minister from approving a person becoming an Australian citizen at a time when proceedings for an offence against an Australian law are pending. Simply put, Mr Soman had outstanding charges which had not been heard and he could not be granted citizenship at this time.
Mr Singh contended the case should not be dismissed as the charges were not a true reflection of Mr Soman’s character and to deny Mr Soman the ability to become a citizen would place a great impost upon him. Mr Singh argued Mr Soman would lose a great deal of time if he was required to reapply for Australian citizenship. He required Australian citizenship now as he wants to work in an Australian government job in the financial sector and wishes to undertake further studies to gain additional qualifications related to his profession. He argued Mr Soman is currently denied access to federal jobs and better study options with HECS as these are only available to Australian citizens. Mr Singh contended that a new citizenship application for Mr Soman will take another 1-2 years which would have a major impact on his career development.
The Tribunal provided oral reasons at the hearing indicating that the timing of the matter was critical to determining the outcome of the application. The Tribunal is mindful that Mr Soman has the right to appeal the refusal of the delegate’s decision even though the Act does not allow a decision in his favour to made in these circumstances. Timing is the critical factor at play in this matter and it is for this very reason the Tribunal was not minded to dismiss the matter. If the timing of Mr Soman’s matters had aligned, he may have had his tribunal hearing after his court date, that has not happened. However, the Tribunal is of the view that Mr Soman has the right to present his case and this should not be denied.
The Tribunal determined that as the case of Mahmoud and Anor and Minister for Immigration and Border Protection [2014] AATA 824 (Mahmoud) demonstrates, timing is everything. In that matter, the Member set aside the delegate’s decision, and found the Applicant to be of good character. In Mahmoud, the Applicant’s application for citizenship was rejected on the basis of section 24(6), as at the time of her application she was still subject to a good behaviour bond. However, by the time the matter reached the substantive hearing before the Tribunal: [it] was was almost seventeen months after the proceedings before the … Court, and almost five months since the expiration of the good behaviour bond.
The Tribunal determined Mr Soman’s matter should be allowed to go through the normal listing process. The Tribunal does this on the basis that a hearing for a dismissal can be brought on at very short notice whilst a substantive hearing date takes longer to be listed. The Tribunal determined in the spirit of the AAT Act, Mr Soman should be allowed to present his case. As already outlined, the timing in this matter is everything. Whilst the Tribunal cannot manipulate a hearing date to the advantage of Mr Soman, nor should it manipulate a hearing date to the advantage of the Respondent by dismissing the matter at the earliest convince.
DECISION
The Tribunal refuses:
1. the Respondent's request to dismiss the application under section 42B of the Administrative Appeals Tribunal Act 1975; and
2. the Applicant’s request for an extension of time until after his Magistrate’s Court date.
I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision of Ms Anna Burke AO, Member
[sgd]................................................................
Associate
Dated: 27 November 2020
Date of interlocutory hearing 2 November 2020 Advocate for the Applicant Mr Harkirat Singh Advocate for the Respondent
Solicitors for the Respondent
Mr Christopher Orchard
Sparke Helmore Lawyers
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