Zaburoni and Minister for Immigration and Border Protection (Citizenship)
[2016] AATA 725
•20 September 2016
Zaburoni and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 725 (20 September 2016)
Division
GENERAL DIVISION
File Number(s)
2016/3420
Re
Godfrey Zaburoni
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Dr L Bygrave, Member
Date 20 September 2016 Place Sydney The application for an extension of time is refused.
..............................[sgd]..........................................
Dr L Bygrave, Member
CATCHWORDS
PRACTICE & PROCEDURE – application for extension of time – whether reasonable in the circumstances – explanation of delay – prejudice to the respondent – merits of the substantial application – extension refused
LEGISLATION
Administrative Appeals Tribunal Act 1975, s29
Citizenship Act 2007, ss 21, 24
Criminal Code (Qld), ss 317(b), 320
CASES
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
REASONS FOR DECISION
Dr L Bygrave, Member
20 September 2016
INTRODUCTION
On 30 June 2016, Mr Godfrey Zaburoni lodged an application under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) seeking an extension of time to make an application to review a decision made by a delegate of the Minister for Immigration and Border Protection on 24 October 2013.
The decision on 24 October 2013 was made in accordance with s 25(2) of the Australian Citizenship Act 2007 (Cth) (Citizenship Act) to cancel the approval of Mr Zaburoni’s application for conferral of Australian citizenship made on 20 May 2010 because he was not of ‘good character’.
The Minister opposes the extension of time sought.
BACKGROUND
Mr Zaburoni is a citizen of Zimbabwe. He first arrived in Australia on 16 December 1997 and was granted a subclass 801 partner visa on 23 October 2007, which provided him with permanent residence status.
On 28 March 2010, Mr Zaburoni applied for Australian citizenship and his application was approved on 20 May 2010.
In 2010, Mr Zaburoni was charged under s 317(b) of the Criminal Code (Qld) (Criminal Code) with the offence of grievous bodily harm with intent to transmit a serious disease (human immunodeficiency virus (HIV)) to his former partner. In the alternate, he was charged with grievous bodily harm under s 320 of the Criminal Code.
Mr Zaburoni was convicted of intent to transmit a serious bodily disease under s 317(b) of the Criminal Code and on 18 April 2013, he was sentenced to a term of nine and a half years imprisonment.
Mr Zaburoni appealed against the decision. Ultimately, on 6 April 2016, the High Court found Mr Zaburoni guilty of unlawfully doing grievous bodily harm to the complainant and remitted the proceeding to the District Court of Queensland for re-sentencing[1].
[1] Zaburoni v The Queen (2016) 90 ALJR 492
On 3 June 2016, Mr Zaburoni was sentenced to a five year suspended sentence.
PRINCIPLES TO BE APPLIED FOR AN EXTENSION OF TIME APPLICATION
Ordinarily, in accordance with s 29(2)(a) of the AAT Act, an application for review of a decision must be lodged with the Tribunal within 28 days from the day on which the decision is given to the applicant.
Pursuant to s 29(7) of the AAT Act, the Tribunal may extend the time for lodging an application if ‘it is satisfied that it is reasonable in all the circumstances to do so’ [emphasis added].
The principles to be applied in determining an application for an extension of time have been set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [348] and [349] as follows:
(a)an applicant must show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time;
(b)a distinction is to be made between an applicant who has ‘rested on his rights’ and allowed the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;
(c)any prejudice to the respondent caused by the delay;
(d)whether the respondent or the general public would suffer any prejudice as a result of the extension;
(e)the merits of the substantial application;
(f)‘considerations of fairness as between the applicant and other persons’ in a similar position.
These principles are not to be applied mechanically. For example, an ‘acceptable explanation for the delay’ is not an essential precondition to the exercise of the discretion, although it is to be expected that such an explanation will normally be given: Comcare v A’Hearn (1993) FCA 498; 45 FCR 441.
All of the circumstances of the case must be considered; the overriding consideration being whether it is ‘reasonable in all the circumstances’ to grant the extension.
REASONS FOR DELAY
The delay in Mr Zaburoni seeking a review of the decision by the Minister’s delegate is more than two and a half years.
The circumstances for this delay were that Mr Zaburoni was incarcerated in a correctional centre in Queensland between 24 October 2013 and 3 June 2016. He also was engaged in appeals processes between 18 April 2013 and 6 April 2016 relating to his criminal conviction, which formed the basis for the decision of the Minister’s delegate to cancel the conferral of his citizenship.
At the Tribunal hearing, both parties acknowledged that this is a unique case in terms of the procedural history and legal circumstances of Mr Zaburoni.
Given these circumstances, I accept that any application for review would have had limited potential for success while Mr Zaburoni’s appeals processes were before the Courts and he was incarcerated. This is because Mr Zaburoni’s ability to satisfy the good character provisions of the Citizenship Act and the eligibility criteria for citizenship may have been adversely affected by his imprisonment.
After considering the evidence before me, I find that there are significant and valid reasons for the delay in lodging a review of the decision and Mr Zaburoni did not ‘rest on his rights’.
While this principle weighs in favour of the applicant, it is not the only factor I need to consider in determining whether to grant the extension of time.
PREJUDICE TO THE RESPONDENT
On 24 October 2013, the Minister’s delegate made a decision to cancel the approval of Mr Zaburoni’s application for conferral of citizenship in accordance with s 25(2) of the Citizenship Act.
I accept that this decision was made more than two and a half years ago, and the Minister would understandably have expectations about the finality of the decision-making process.
Mr Zaburoni’s legal representative told the Tribunal that the Minister was advised about the applicant’s on-going legal appeal processes; however, the delegate still proceeded to make decision to cancel his approval to confer citizenship. As Mr Zaburoni is able to make a new application for citizenship at any time, I find that there is no detriment to Mr Zaburoni from the Minister seeking to finalise the decision-making process.
I am satisfied that there would be prejudice to the Minister if the extension of time is granted.
MERITS OF SUBSTANTIVE MATTER
The Tribunal must consider the merits of the substantive application in deciding whether to grant the extension of time.
Mr Zaburoni’s citizenship was cancelled by the Minister’s delegate under s 25(2) of the Citizenship Act on the basis that he is not of ‘good character’.
Relevant legislation
Section 21(1) of the Citizenship Act provides that a person may make an application to the Minister to become an Australian citizen. Pursuant to s 24(1) of the Act, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Section 24(1A) of the Act states that the Minister must not approve a person becoming an Australian citizen unless the person is eligible to become an Australian citizen under s 21(2), (3), (4), (5), (6), (7) or (8) of the Act.
The general eligibility criteria for a person over 18 years of age to become an Australian citizen are set out in s 21(2) of the Act. Relevantly, among the criteria at s 21(2), paragraph (h) provides that the Minister must be satisfied that the person is of good character at the time of the Minister’s decision on the application.
The substantive matter is whether, on the balance of the evidence before the Tribunal, Mr Zaburoni is likely to meet the requirements of ‘good character’ as required by s 21(2)(h) of the Act.
Definition of ‘good character’
The term ‘good character’ is not defined in the Act. Guidance can be found in Ch 11 of the Citizenship Policy, which from 1 June 2016 replaced the policy guidance previously provided in Ch 10 of the Australian Citizenship Instructions (ACIs), which was last published on 26 February 2015. From 1 June 2016, the ACIs detail the citizenship operational instructions.
The role of the Citizenship Policy is to offer guidance on the interpretation of the Act. Although I am not bound to strictly apply the Citizenship Policy, it is government policy and should be considered unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.
As to the definition of good character, the Citizenship Policy cites the decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at [431]-[432]:
Unless the terms of the Act and Regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion…
The Citizenship Policy states the phrase ‘enduring moral qualities’ encompasses concepts of characteristics which have been demonstrated over a very long period of time; distinguishing right from wrong; and behaving in an ethical manner, which includes conforming to the rules and values of Australian society.
This broad definition of the good character requirement looks at the essence of the applicant and their behaviour being a manifestation of essential characteristics. The Tribunal can be satisfied that an applicant is of good character if they have demonstrated ‘good enduring/lasting moral qualities’ before and throughout their citizenship process.
In Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8], Deputy President Breen discussed the requirement of character in a citizenship application:
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home…The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.
The Citizenship Policy sets out a ‘non-exhaustive’ list of characteristics of good character. Relevant to this decision, a person of good character would respect and abide by the law in Australia, not be involved in unlawful sexual activity, and not cause harm to others through their conduct.
Offence
On 6 April 2016, Mr Zaburoni was found guilty by the High Court of unlawfully doing grievous bodily harm to his former partner and the matter was remitted to the District Court of Queensland for re-sentencing.
On 3 June 2016, the sentencing judge remarked:
I am faced with a different situation now. The charge is much less serious, and I notionally, would start at the point of about seven years for this sentence. But I have to reduce it for the same reasons I did in 2013. That is, your attempts at rehabilitation. Secondly, because there was a plea of guilty some time ago, the law says I must recognise that and the conventional way of recognising it is to order a release or an eligibility for release after serving a-third of the head sentence. In this case, I am going to order that the head sentence against you be five years. On a sentence of five years on a plea of guilty you might have expected to be released after 18-20 months. You have now served three years and two months – or three months. I can’t do anything about that. I cannot do anything about it by way of declaring it, because it is not subject to being declared.
…
So the sentence that I impose in respect of this matter is that you be imprisoned for a period of five years. I order that term of imprisonment be suspended forthwith and you must not commit another offence punishable by imprisonment within a period of five years from today.
Consideration
While the High Court found Mr Zaburoni guilty of a lesser charge under s 320 of the Criminal Code, this offence is still considered to be very serious.
In considering all of the relevant circumstances and weighing the available evidence, I am of the view that it is highly unlikely that a person currently serving a five year suspended sentence will be found to be of ‘good character’ as set out in the Citizenship Policy.
I therefore consider that the substantive matter has minimal merit. This weighs heavily against the extension of time being granted.
CONCLUSION
Taking into account all of the information before me, I am not satisfied that it is reasonable in the circumstances to grant the extension of time.
My conclusion does not preclude Mr Zaburoni from making a further application for citizenship in the future.
DECISION
The application for an extension of time is refused.
I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member ................................[sgd]........................................
Associate
Dated 20 September 2016
Date(s) of hearing 26 August 2016 Solicitors for the Applicant HIV/AIDS Legal Centre Solicitors for the Respondent Australian Government Solicitor
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Appeal
-
Judicial Review
-
Procedural Fairness
-
Standing
-
Statutory Construction
-
Remedies
0
4
0