Sudarto and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 2889
•17 August 2021
Sudarto and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2889 (17 August 2021)
Division:GENERAL DIVISION
File Number(s): 2021/2012
Re:Daniel Putra-Jaya Sudarto
APPLICANT
Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT
Decision
Tribunal:Mr S. Webb, Member
Date:17 August 2021
Place:Canberra
Application dismissed.
………………[sgd]……………
Mr S. Webb, Member
Catchwords
AUSTRALIAN CITIZENSHIP – application for conferral – good character requirement – good behaviour bond – bar on conferral – no discretion – consideration of the Tribunal’s procedural power to adjourn – application dismissed.
Legislation
Administrative Appeals Tribunal Act 1975 ss 2A, 40, 42B, 43.
Australian Citizenship Act 2007 ss 21, 24.
Cases
Al Ahmed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 963.
Lesi v Administrative Appeals Tribunal [2015] FCA 1186.
PFJB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2721.
REASONS FOR DECISION
Mr S. Webb, Member
17 August 2021
Daniel Sudarto applied for Australian citizenship by conferral. A delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) refused his application. Mr Sudarto applied to this Tribunal for review.
In the course of the resulting proceedings, the Minister asked for the application to be dismissed on grounds it has no reasonable prospect of succeeding as Mr Sudarto is subject to a good behaviour bond. It is this issue, alone, that must presently be decided.
The Minister argues that s 24(6)(g) of the Australian Citizenship Act 2007 (Citizenship Act) precludes conferral of Australian citizenship on an applicant during a period in which the section applies. In the Minister’s submission, where the section applies, there is no discretion available that would enable conferral of citizenship to be made in the circumstances of a particular case, on compassionate grounds for example. Furthermore, the Minister asserts that it is not open for the Tribunal to adjourn proceedings to the end of the period of Mr Sudarto’s good behaviour bond as to do so would not be consistent with the Citizenship Act.
Mr Sudarto submits that a compassionate approach should be adopted in the particular circumstances of his case.
Mr Sudarto did not make an application for the proceedings to be adjourned. He informed me that he is not a lawyer and, although he did some research in preparation for the hearing, he is not aware of all relevant cases that may be relevant.
Facts
The relevant facts are not in dispute and they can be shortly stated.
Mr Sudarto is an Indonesian citizen who first arrived in Australia on 21 January 2007.[1]
[1] T12, folio 155.
There is no dispute that, except for the good character requirement in s 21(2)(h) of the Citizenship Act, Mr Sudarto satisfies the requirements for conferral of Australian citizenship.
On 12 April 2019, Mr Sudarto was granted a Partner subclass BS-801 visa.[2] This visa allowed for permanent residence.
[2] T13, folio 156.
On 28 May 2020, Mr Sudarto applied for conferral of Australian citizenship.[3]
[3] T4.
On 4 March 2021, a National Police History Report revealed that Mr Sudarto had been charged with an offence – Driver/Driver Training Prescribed Drug in Oral Fluid/Blood.[4]
[4] T11, folio 153.
On 5 March 2021, a delegate of the Minister refused Mr Sudarto’s application for conferral of Australian citizenship under s 24(2) of the Citizenship Act (Minister’s decision).[5]
[5] T2.
On 12 March 2021, the ACT Magistrates Court made a good behaviour order against Mr Sudarto:[6]
[6] Documents filed by the Applicant, 24 May 2021.
On 2 April 2021, Mr Sudarto applied for review of the Minister’s decision by the Tribunal.
Issues
Essentially, there are two issues to decide. Firstly, whether there is discretion to confer Australian citizenship on a person to whom s 24(6)(g) applies. Secondly, whether it would be appropriate to adjourn proceedings in the Tribunal until the expiration of the good behaviour bond imposed by a court.
Discretion
By operation of s 24(1A), the Minister, or the Tribunal on review, must not approve the person becoming an Australian citizen if he or she is not eligible under the specified provision of s 21. In Mr Sudarto’s case, it is s 21(2) that relevantly applies. In order to be eligible under this section, all of the essential requirements must be satisfied. Under s 21(6)(g), the decision maker must be satisfied that the applicant is of good character.
Furthermore, s 24(6) precludes the Minister, and the Tribunal on review, from conferring Australian citizenship on a person in certain circumstances. In Mr Sudarto’s case, s 24(6)(g) applies –
(6) The Minister must not approve the person becoming an Australian citizen at a time:
…; 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; …
Where the essential preconditions of this section are found to exist, there is no discretion available to the Minister or the Tribunal on review: Australian citizenship cannot be conferred on the person.
As Mr Sudarto is subject to a good behaviour bond imposed by the ACT Magistrates Court until 12 December 2021, section 24(6)(g) operates with preclusive force.
There is no discretion available to the Minister or to this Tribunal to waive the s 24(6)(g) preclusion in the particular circumstances of his (or any) case.
Adjournment
The Tribunal has power to determine procedure. Under s 40(1)(c) of the Administrative Appeals Tribunal Act 1975 (AAT Act), the Tribunal may adjourn proceedings from time to time for the purposes of reviewing a decision. This is a general procedural power that is distinct from the substantive powers (and discretions) of the Minister which the Tribunal may exercise for the purposes of review by operation of s 43(1). Powers of the latter kind are within the terms and for the purposes of the Citizenship Act, whereas the Tribunal’s procedural powers arise from the AAT Act for the purposes of review. It is important to maintain a clear eye on these differences when considering an application for adjournment in proceedings of the present kind.
The Minister argues that the Tribunal has applied[7] and is bound by Lesi v Administrative Appeals Tribunal (Lesi),[8] in which Besanko J decided that the Tribunal’s general power to adjourn proceedings was effected by the Citizenship Act, under which there is no express provision, and no power, for the Minister to defer consideration of an application on the basis that a bar under s 24(6) might expire at a point in time in the future. His Honour said –
24. … It is true that the Tribunal’s general power to adjourn is unconfined in its terms, but it seems to me that there would need to be something in the Act to suggest that the future occurrence of an event identified in s 24(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. …
25. In his submissions, counsel for the applicant gave examples of cases where he submitted the Tribunal should be able to adjourn a hearing to allow a matter to expire or no longer be relevant. One example was of a case where a security or bond was to expire a few days after a scheduled Tribunal hearing. However, even if I am wrong in the conclusion I express above (at [24]) and the Tribunal could adjourn the hearing for a short period on the basis of such a consideration, that would be because of a consideration that the Tribunal was permitted to take into account but not required to take into account…
[7] See, for example, PFJB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2721 at [21].
[8] [2015] FCA 1186.
There are a number of things to say about this.
Firstly, these issues are subject to other proceedings in the Federal Court, namely Al Ahmed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[9] in which Perry J discussed serious doubts raised about the correctness of the decision in Lesi’s case[10] and, in granting an extension of time, recommended that the appeal in that case be heard by a Full Court. This notwithstanding, the Tribunal is presently bound by Lesi. It is important to note that in Lesi, Besanko J left open the discretion of the Tribunal to take account of the circumstances of the particular case when deciding an application for adjournment.
[9] [2020] FCA 963.
[10] Ibid, paragraphs [22]-[24].
Secondly, as I have said, Mr Sudarto has not made an application for adjournment of the proceedings. This is so even though matters relating to the issue of adjournment were expressly raised and discussed during the interlocutory hearing. That said, I note that Mr Sudarto is not a lawyer and the significance of applying for an adjournment may not have been apparent to him.
Thirdly, even if an application for adjournment of the proceedings had been made, in any event, to my mind there is no good reason to adjourn the proceedings in the circumstances of this case. Mr Sudarto did not raise any compelling reason, by way of detrimental effect or adverse consequence to him, for adjournment of the proceedings until the period of his good behaviour bond expires, on 12 December 2021. On the materials I have examined, there is nothing that would compel a such a conclusion. To the contrary, adjourning proceedings for many months on such a basis would be contrary to the objectives of the Tribunal that are set out in s 2A of the AAT Act. Thus, even if Lesi’s case does not apply comprehensively to limit the Tribunal’s discretion to adjourn proceedings under s 40(1)(c) of the AAT Act, which is a matter of some doubt, on the present materials I would not grant such an adjournment.
Finally, once Mr Sudarto’s good behaviour bond has expired, he will be able to make a fresh application for conferral of Australian citizenship.
Conclusion
Having considered the matters raised by the parties, I am satisfied that Mr Sudarto’s application has no reasonable prospect of success. There is no discretion available to confer Australian citizenship upon him during the period in which he is under a good behaviour bond to the ACT Magistrates Court. I am not persuaded it is appropriate to adjourn the proceedings until the expiration of that bond on 12 December 2021.
In these circumstances, it is appropriate to dismiss Mr Sudarto’s application under s 42B(1)(b) of the AAT Act.
Decision
Application dismissed.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.
................................[sgd] .................................
Associate
Dated: 17 August 2021
Representatives
31. Date(s) of hearing:
32. 13 August 2021
33. Date final submissions received:
34. 10 August 2021
35. Solicitor for Respondent:
36. Emma Letcher-Boldt, CLAYTON UTZ
0
3
0