Schicker and Minister for Immigration, Multicultural and Indigenous Affairs [2003] AATA 63 (15 January 2003)

Last Updated: 23 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 63

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/731

GENERAL ADMINISTRATIVE DIVISION )

Re DARYL JOHN SCHICKER

Applicant

And MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon CR Wright, QC (Deputy President)

Date 15 January 2003

Place Southport

Decision The Tribunal affirms the decision under review.

..................(Sgd).......................

The Hon CR Wright, QC

Deputy President

CATCHWORDS

IMMIGRATION AND CITIZENSHIP - application for grant of citizenship - convictions for drug offences - suspended sentence - risk of activation of sentence if applicant re-offends before 2005 - whether grant of citizenship barred by operation of s 13(11)(d) of the Australian Citizenship Act 1948 - whether applicant is of good character

Australian Citizenship Act 1948 ss 13(1)(f), 13(11)(d)

Administrative Appeals Tribunal Act 1975 s 40(1)(b)

Re Hou and Minister for Immigration and Multicultural Affairs [2001] AATA 855

WRITTEN REASONS FOR ORAL DECISION

15 January 2003 The Hon CR Wright, QC (Deputy President)

1. This is an application for review of a decision to refuse the grant of a certificate of Australian citizenship under section 13 of the Australian Citizenship Act 1948 ("the Act").

2. This matter was listed for hearing in Southport at 10.30am on 15 January 2003, of which notice was duly sent to the parties on 3 December 2002. The applicant failed to appear at the hearing and the respondent (represented by Mr P Hardman of Blake Dawson Waldron) submitted that the Tribunal should proceed to hear the matter pursuant to subsection 40(1)(b) of the Administrative Appeals Tribunal Act 1975. The Tribunal acceded to this request.

3. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and the respondent's statement of facts and contentions, lodged with the Tribunal on 13 December 2002, which compendiously but accurately sets forth the relevant matters of fact and law which arise upon this application to review.

4. The applicant, a New Zealand citizen born on 20 April 1974, seeks the grant of a certificate of Australian citizenship, but, it is submitted by the respondent, subsection 13(11)(d) of the Act stands in his way. That provision prohibits the granting of a certificate to any person who has been released from serving a sentence of imprisonment on parole or licence during any period during which action can be taken against him requiring him to serve the whole or part of that sentence.

5. On 25 September 2000, the applicant was convicted of producing a dangerous drug and was sentenced to a period of 2½ years imprisonment. That sentence was wholly suspended for a period of 5 years. Therefore, he is at risk of activation of that sentence should he re-offend before 26 September 2005.

6. Clearly, the applicant falls within the prohibition of subsection 13(11)(d) and he is ineligible for the grant of a certificate of citizenship at the present time. This is sufficient to dispose of the application. However, there is a secondary and independent ground upon which the review should fail.

7. Subsection 13(1)(f) requires the applicant to satisfy the Minister (or his delegate) that he is a person of good character. In my opinion his criminal history would render any such conclusion impossible at the present time. I adhere to the views which I expressed in Re Hou and Minister for Immigration and Multicultural Affairs [2001] AATA 855 regarding the effect of a suspended sentence upon "good character".

8. The decision under review is affirmed.

I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C Wright, QC

Signed: Sarah Oliver

Associate

Date of Hearing 15 January 2003

Date of Decision 15 January 2003

The applicant did not appear at the hearing

Solicitor for the Respondent Mr P Hardman, Blake Dawson Waldron