"VZQ" and Minister for Immigration and Multicultural Affairs
[2000] AATA 418
•24 May 2000
DECISION AND REASONS FOR DECISION [2000] AATA 418
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V99/716
GENERAL ADMINISTRATIVE DIVISION )
Re VZQ
Applicant
And Minister for Immigration and Multicultural Affairs
Respondent
DECISION
Tribunal Deputy President B.M. Forrest
Date24 May 2000
PlaceMelbourne
Decision The decision under review is affirmed.
........(Sgd. B.M. Forrest)...........
Deputy President
CATCHWORDS
CITIZENSHIP – Applicant found not guilty of murder by reason of insanity – detained at the Governor's pleasure – subject to a custodial supervision order under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic.) – application for Australian citizenship – whether applicant meets the residency requirements – decision affirmed.
Australian Citizenship Act 1948 (Cth) ss. 13(1), 13(4), 13(11)
Crimes Act 1958 (Vic.) s. 420
Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic.) ss. 3, 31, 56 and 57, Clause 2 of Schedule 3
Migration Act 1958 (Cth) s. 501
[1999] VSC 144
REASONS FOR DECISION
24 May 2000 Deputy President B.M. Forrest
At the conclusion of the hearing I informed the parties orally of my decision in this matter. My decision and reasons for that decision are as follows.
The decision under review in these proceedings is that of a delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant to the applicant a certificate of Australian citizenship under s. 13(1) of the Australian Citizenship Act 1948 (Cth) ("the Citizenship Act").
The applicant applied for Australian citizenship on 11 July 1997. This was refused on 4 June 1999. The ground of the refusal was stated in the following terms:
"Your application has been carefully considered but cannot be approved in view of Section 13(11) because:
You are currently confined to a psychiatric institution by order of a court in relation to proceedings which are pending against you for an offence against the law in Australia."
Section 13 of the Citizenship Act as relevant provides:
"13. (1) Subject to this section, the Minister may, in the Minister's discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:
(a)the person is a permanent resident;
(b)the person has attained the age of 18 years;
(c)the person understands the nature of the application;
(d)the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one year during the period of 2 years immediately preceding the date of the furnishing of the application;
(e)the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than 2 years during the period of 5 years immediately preceding the date of the furnishing of the application;
(f)the person is of good character;
(g)the person possesses a basic knowledge of the English language;
(h)the person has an adequate knowledge of the responsibilities and privileges of Australian citizenship; and
(j)if granted a certificate of Australian citizenship, the person is likely to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia.
…
(4) For the purposes of the application of subsection (1) in relation to an applicant for the grant of a certificate of Australian citizenship:
(a)the Minister shall not take into account, as a period during which the applicant has been present in Australia as a permanent resident, any period during which the applicant has been confined in a prison or has been confined in a psychiatric institution by order of a court made in connection with criminal proceedings against the person; and
(b)subject to paragraph (a), the Minister may, in the Minister's discretion:
…
(11) The Minister shall not grant a certificate of Australian citizenship to a person under subsection (1) or (9) or include the name of a person in a certificate of Australian citizenship under subsection (10):
(a)during any period during which proceedings for an offence against a law of the Commonwealth, a State or a Territory (including proceedings by way of appeal or review) are pending in relation to the person;
…
(f)during any period during which the person is confined in a psychiatric institution by order of a court made in connection with proceedings of the kind referred to in paragraph (a) in relation to the person; or
…"
The background facts are as follows. The applicant arrived in Australia on 12 December 1989. He was granted permanent residence on 5 May 1995. On 29 May 1995 he killed his wife in horrific circumstances. On 16 October 1995 he was presented for trial on a charge of murdering his wife. At the direction of the trial Judge, the jury returned a verdict of not guilty on the ground of insanity.
The trial Judge directed under s. 420 of the Crimes Act 1958 (Vic.) that the applicant be kept in strict custody at Rosanna Forensic Psychiatric Centre until the Governor's pleasure was known. On 5 December 1995 the Governor ordered that the applicant be kept in safe custody at the Rosanna Forensic Psychiatric Centre. As a consequence the applicant was subject to the operation of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic.) ("the Act") and for the purposes of the Act is deemed to be subject to a custodial supervision order under the Act (Clause 2 of Schedule 3).
On 30 November 1998, the Department of Immigration and Multicultural Affairs wrote to the applicant informing him that cancellation of his permanent residence visa was being considered under s. 501 of the Migration Act 1958 (Cth) ("the Migration Act"). On 15 April 1999 he was informed by letter that a delegate of the Minister had decided not to order cancellation of his permanence resident visa under s. 501 of the Migration Act.
On 28 April 1999 the applicant applied to the Supreme Court under s. 57 of the Act for extended leave. Extended leave is defined in s. 56 of the Act as leave for a forensic patient or forensic resident to be absent from the place of custody for a period not exceeding twelve months and subject to conditions (if any) specified by the Court. The applicant falls within the definition of "forensic patient" in s. 3 of the Act. Section 57 of the Act sets out the matters on which the Court must be satisfied and to which it must have regard in considering an extended leave application. It also provides in sub-s. (4) that a person may apply for and be granted extended leave more than once. On 6 May 1999 the Supreme Court made an order granting extended leave for twelve months on the following terms:
"1.That [VZQ] be under the supervision of the Authorised Psychiatrist of the Victorian Institute of Forensic Mental Health.
2.That he reside at [address] or at any other address as directed by the Authorised Psychiatrist.
3.That he comply with the lawful directions of the Authorised Psychiatrist.
4.That he comply with treatment and tests, and attend appointments as directed by the Authorised Psychiatrist or his/her delegate, or Case Manager.
5.That he abstain from the abuse of alcohol or illicit use of drugs.
6.That he does not leave the state of Victoria without the permission of the Authorised Psychiatrist."
On 19 April 2000, the Supreme Court granted the applicant extended leave for a further twelve months. At the same time the applicant applied to the Court under s. 31 of the Act for a variation of the custodial supervision order (with extended leave) to a non custodial supervision order. This application is yet to be heard.
Ms Aylward who appeared for the respondent conceded that the stated ground of refusal of the application for citizenship was incorrect. This concession was correctly made. The decision under review appears to rely on s. 13(11)(a) of the Citizenship Act read in conjunction with s. 13(11)(f). Under these provisions the Minister is prohibited from granting a certificate of Australian citizenship during any period during which proceedings for an offence are pending, or during any period during which a person is confined in a psychiatric institution by order of a Court in relation to which proceedings are pending. When the decision under review was made on 4 June 1999, the applicant was not confined in a psychiatric institution nor were any proceedings pending. In fairness to the decision maker, he may not have been aware the applicant was granted extended leave on 6 May 1999.
Accordingly, it is necessary to test the application against other criteria provided in the Citizenship Act, initially the residence requirements of s. 13(1)(d) and (e). Firstly, turning to s. 13(1)(d), that of permanent residence of not less than one year during the two years immediately preceding the application for citizenship, the relevant period for consideration is the two years prior to 11 July 1997, the date of lodgement of the application for citizenship. The applicant was confined in a psychiatric institution by order of a Court for the whole of that period except for approximately three months, the period from 11 July 1995 until 15 October 1995. In this period it is unclear whether he was detained by a Court or under the mental health legislation.
The applicant submitted that as he had been in a rehabilitation ward and actively participated in rehabilitation programs since 15 October 1995 that his active participation in rehabilitation progressing through a series of leaves takes him outside the class of persons "confined" in a psychiatric institution.
I am unable to accept the applicant's submission. Significant events in the applicant's rehabilitation process during the relevant period are recorded in a medical report of Dr Carroll dated 9 April 1999: (see paragraph 17 – Supreme Court judgment [1999] VSC 144) as follows:
"? 09/11/95 – Granted escorted on-ground leave one hour per week.
?08/01/96 – Granted escorted off-ground leave up to one hour per week for swimming.
Over the following two years, his escorted leave was gradually increased in length and scope, in order that he could engage in appropriate rehabilitation activities such as personal shopping, visits to the library, visits to prospective employers, and various leisure activities such as table tennis.
…"
Dr Carroll's report goes onto state that (subsequent to the relevant period) on 7 August 1997, the applicant was granted unescorted on-ground leave up to one hour per day and, from 27 February 1998 unescorted off-ground leave was granted by the Mental Health Review Board for the specific purpose of attending a TAFE course.
These facts clearly establish that during the relevant period, except for three months, the applicant fell within the ordinary meaning of being "confined in" a psychiatric institution. Until such time as he was granted leave with permission to reside "out of" the psychiatric institution, and this did not occur during the relevant period, he was "confined in" the institution with the meaning of s. 13(4)(a) of the Citizenship Act.
Further, the applicant cannot satisfy s. 13(1)(e) of the Citizenship Act of not less than two years in aggregate of permanent residence in the five years immediately preceding the application for citizenship. The applicant gained permanent residence status on 5 May 1995 and until his application for citizenship on 11 July 1997, the whole of the period, except for the period from 5 May 1995 until 15 October 1995, is excluded from calculation of his residence because of his confinement in a psychiatric institution.
A further submission of the applicant that s. 13(4)(a) of the Citizenship Act not apply to persons found not guilty is without substance. Whether a person is found guilty or not guilty is irrelevant for the purposes of the periods to be excluded under s. 13(4)(a).
The ameliorating provisions of s. 13(4)(b) of the Citizenship Act are of no assistance to the applicant because the exercise of the Minister's discretion is not a remedy that is available in the applicant's circumstances on account of the opening words of s. 13(4)(b) "subject to paragraph (a), the Minister may, …".
On the material before me, the applicant, provided he remains in Australia will satisfy the residence requirements of s. 13(1)(d)and (e) of the Citizenship Act on 6 May 2001. He will need to make a fresh application.
For these reasons the decision under review is affirmed.
I certify that the (20) preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President B.M. ForrestSigned: .....................................................................................
AssociateDate/s of Hearing 1 May 2000
Date of Decision 24 May 2000
For the Applicant in person
Applicant assisted by Ms J. Ireland, Forensic Mental Health, case worker
For the Respondent Ms J. Aylward, departmental advocate
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