Vo and Minister for Immigration, Citizenship, Migrant Services (Citizenship)
[2025] ARTA 359
•20 March 2025
Vo and Minister for Immigration, Citizenship, Migrant Services (Citizenship) [2025] ARTA 359 (20 March 2025)
Decision and Reasons for Decision
and Multicultural Affairs
Applicant/s: Minh Duc Vo
Respondent: Minister for Immigration, Citizenship, Migrant Services
and Multicultural Affairs
Tribunal Number: 2024/5071
Tribunal: Senior Member S Webb
Place: Canberra
Date: 20 March 2025
Date of written reasons: 28 March 2025
Decision: The Tribunal affirms the decision under review.
…………[SGD]………………………
Senior Member Webb
Catchwords
AUSTRALIAN CITIZENSHIP – application for conferral of Australian citizenship – proceedings for an offence – finalisation of proceedings on conviction – non-custodial sentence – good behaviour order – meaning of ‘security’ – bar on conferral for duration of actionable order – decision affirmed
Legislation
Administrative Review Tribunal Act 2024, s 54 Australian Citizenship Act 2007, ss 21, 24 Crimes Act 1900 (ACT), s116
Crimes (Sentencing) Act (ACT), ss 13, 85, 86 108
Cases
Lesi v Administrative Appeals Tribunal [2015] FCA 1186
Lew and Minister for Immigration and Citizenship [2009] AATA 949
Shapkin v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 681
Statement of Reasons
Min Duc Vo applied for conferral of Australian citizenship.1 A delegate of the Minister decided this could not be granted as Mr Vo was the subject of criminal proceedings.2 Mr Vo applied to the Tribunal for review of this decision.3
In the course of the Tribunal proceedings, the criminal proceedings against Mr Vo were finalised. Mr Vo was convicted of aggravated property damage (less than $5,000) and he was sentenced to a 12-month good behaviour order with core conditions. No surety was given. On the facts of his case, it appears he threw and smashed a glass in a domestic dispute with his wife.
1 T4,
2 T3.
3 T1.
When the matter came on for hearing, Mr Vo pressed his application for conferral of Australian citizenship. In his submission, to refuse the grant of Australian citizenship on the basis of the offence conviction and sentence would be unjust and unfair. He argued that he pled guilty to the offence on legal advice that doing so would have no effect whatsoever on his citizenship application. Mr Vo was unrepresented during the hearing and argued he would not have entered a guilty plea if he had known there would be an adverse effect on his citizenship application. He sought time to lodge an appeal against the conviction, which was granted. Subsequently, Mr Vo advised me he would not pursue this as any such appeal would be well out of time. Nevertheless, Mr Vo urged the Tribunal to provide him with justice and a fair result by reversing the decision to refuse his application for conferral of Australian citizenship.
The Minister asserted the Tribunal has jurisdiction and power to determine all relevant matters in respect of Mr Vo’s citizenship application. This is so, the Minister argued, despite changes in the factual circumstances of his case. The Minister contends that even though the offence proceedings against Mr Vo concluded, the Tribunal must take account of the fact Mr Vo was convicted of the aggravated property damage charge and sentenced to a 12 month good behaviour order by the ACT Magistrates Court. This, the Minister alleges, is a relevant factual consideration for the purposes of s 24(6) of the Australian Citizenship Act 2007 (Act) which bars conferral of Australian citizenship in specific circumstances. On this point, the Minister asserts the Tribunal has no discretion and the decision to refuse Mr Vo’s citizenship application must be affirmed.
The Minister is correct to accept the Tribunal has jurisdiction under s 52 of the Act to review all matters raised by Mr Vo’s application for conferral of Australian citizenship. The Tribunal’s review is not limited to the matters actually determined by the person who made the decision under review. It has jurisdiction and power to determine afresh all of the matters which were before, and were capable of being decided by, the original decision-maker. For the purposes of review, the Tribunal may exercise all of the statutory powers and discretions conferred upon the original decision-maker (s 54, Administrative Review Tribunal Act 2024 (ART Act)). In so doing in a case of this kind, the Tribunal must make the correct or
preferable decision on the materials placed before it, having regard to relevant circumstances after the date of the original decision.4
Resolution of the substantive matters in this case turns on s 21 and s 24 of the Act, relevantly:
21 Application and eligibility for citizenship
…
(2) 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.
24 Minister’s decision
(1) 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.
Note: The Minister may cancel an approval: see section 25.
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2),
...
(2) The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), ...
… Offences
4 Shapkin v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 681, [83].
(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
…; 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
...
As can be seen, where the preconditions in s 24(6)(g)(i) and (ii) are met, there is no power to approve a person becoming an Australian citizen during the period in which action can be taken against the person for breach of the security under which the person was released.
The words ‘must not approve’ in s 24(6) of the Act are directive and, once enlivened, they do not admit discretion in the particular circumstances of any case.
Just as the Minister is bound not to approve conferral of Australian citizenship on a person who is within the terms of s 24(6)(g), so too this Tribunal is bound.
There can be no doubt of the relevant facts in Mr Vo’s case.
On 6 November 2024, he was convicted of an Aggravated Destroy/Damage Property Not Exceeding $5000 offence in contravention of s 116(3) of the Crimes Act 1900 (ACT). This offence is punishable by imprisonment. Magistrate Temby released Mr Vo subject to a 12- month good behaviour order for the purposes of s 13 of the Crimes (Sentencing) Act (ACT) (Sentencing Act). The order required Mr Vo to sign or give an undertaking of compliance with his good behaviour obligations, including the core conditions of the order under sections 85 and 86 of the Sentencing Act.
By signing the order, Mr Vo gave an undertaking to the Court in respect of his good behaviour obligations, breach of which during the period of the order would be actionable under s 108 of the Sentencing Act.
The undertaking Mr Vo gave is a form of ‘security’ for the purposes of s 24(6)(g)(ii) of the Act.5 This is so even though no monetary security was required.
As there are many months to run before the security Mr Vo gave is exhausted on 6 November 2025, I am satisfied it is not appropriate to delay these proceedings until that threshold has passed. To do so would not be consistent with the Citizenship Procedural Instruction policy promulgated by the Minister’s Department which allows flexibility to delay a decision for weeks, not months.6 There is a real question whether the Tribunal’s power to adjourn proceedings could properly be exercised in anticipation of the completion of a sentence, including a good behaviour order, many months in the future.7 It would also not be consistent with the Tribunal’s statutory objectives set out in s 9 of the Administrative Review Tribunal Act 2024 (ART Act):
The Tribunal must pursue the objective of providing an independent mechanism of review that:
(a)is fair and just; and
(b) ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits; and
(c)is accessible and responsive to the diverse needs of parties to proceedings; and
(d)improves the transparency and quality of government decision-making; and
(e)promotes public trust and confidence in the Tribunal.
It can readily be understood that what is fair and just must be weighed against the other elements of the objective, including the exhortation to resolve applications as quickly as a proper consideration permits. The conceptions of fairness and a ‘just’ mechanism of review must be viewed in the context of the Tribunal’s statutory purpose of making administrative review decisions on the merits. The Tribunal does not dispense justice, it is not a court, but it must provide a mechanism of review which is fair and just when exercising the jurisdiction conferred upon it.
Mr Vo’s assertion of unfairness is squarely directed to the consequential effect of his conviction and sentence in the criminal proceedings, and the advice he alleges he was
5 Lew and Minister for Immigration and Citizenship [2009] AATA 949, [6]-[9].
6 T15, 183.
7 Lesi v Administrative Appeals Tribunal [2015] FCA 1186, [24]-[25].
given by his lawyer. Those are matters for him which cannot be cured by the Tribunal. He had a right to appeal against the sentence imposed on him by the ACT Magistrates Court, but he made no such appeal. To the extent he alleges he was given faulty legal advice, that is a matter for him to take up with his previous lawyer.
The Tribunal is bound to exercise the jurisdiction conferred upon it, beyond which it cannot lawfully go. Even though the Tribunal may exercise all the powers and discretions conferred on the person who made the decision under review, this does not assist Mr Vo. There is no power or discretion to waive or contravene the direction in s 24(6) where the terms of paragraph 24(6)(g) of the Act are met.
For this reason, which I explained to the parties in the hearing, Mr Vo’s application for conferral of Australian citizenship cannot succeed and the decision under review must be affirmed.
Date(s) of hearing: 19 March 2025
Applicant: Minh Duc Vo, Self-Represented
Solicitors for the Respondent: S. Lim, Minter Ellison
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