Lew and Minister for Immigration and Citizenship [2009] AATA 949 (10 December 2009)

Last Updated: 10 December 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 949

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/3380

GENERAL ADMINISTRATIVE DIVISION )

Re Yeong Ho LEW

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal The Hon B Tamberlin QC, Deputy President

Date 10 December 2009

Place Sydney

Decision The decision under review is affirmed.

..................[SGD]...................

The Hon B Tamberlin QC
Deputy President

CATCHWORDS

...IMMIGRATION AND CITIZENSHIP- refusal to approve application for citizenship- proceedings for an offence against Australian law pending- good behaviour bond as security- Tribunal must apply relevant law and circumstances in place at the time of review unless indications to the contrary exist.

RELEVANT ACTS

Australian Citizenship Act 2007 (Cth): s 24

Crimes (Sentencing Procedure) Act 1999: ss 10, 98

...

CITATIONS

Shi v Migration Agents Registration Authority [2008] HCA 31

Re Smith and Defence Fund Retirement and Death Benefits Authority (1978) 1 ALD 374

...

REASONS FOR DECISION

10 December 2009

The Hon B Tamberlin QC, Deputy President

1. This is an application by Mr Yeong Ho Lew for review of a decision made by a delegate of the Minister for Immigration and Citizenship under s 24 of the Australian Citizenship Act 2007 (Cth) (the Act). The decision refused to approve Mr Lew’s application for Australian citizenship on the ground that, at the time the application was under consideration, proceedings for an offence against an Australian law were pending in relation to Mr Lew.
2. The relevant provisions of s 24 of the Act are as follows:
   • (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.

...

(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

...

(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
...

(Emphasis added)

3. Mr Lew was charged with the offences of assault occasioning actual bodily harm (ABH), common assault, and destroying or damaging property. At the time of the decision by the Minister’s delegate, these charges were due to be heard before the Bankstown Local Court on 17 July 2009. Refusal to approve Mr Lew’s application for citizenship was made on the basis that, at the time of consideration, proceedings were on foot for an offence against an Australian law.
4. The delegate’s decision was made on 13 June 2009, and the criminal matters were heard before Bankstown Local Court on 17 July 2009. Although Mr Lew was found guilty of ABH, under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Crimes Sentencing Act), the court did not proceed to conviction. An order was made discharging Mr Lew on the condition that he enter into a good behaviour bond for a term not exceeding two years. Mr Lew entered into such a bond. The bond was to the effect that he must not assault or intimidate the person in respect of whom the charge was brought, namely Young Hee Jung.
5. Mr Lew lodged this application to the Administrative Appeals Tribunal (AAT), for review of the decision made by a delegate of the Respondent, on the 22 July 2009.
6. The Minister accepts that the delegate’s reasoning, which was based on s 24(6)(a) of the Act, no longer applies because the charges have now been dealt with. However, the Minister contends before this Tribunal that the Applicant continues to be barred from conferral of citizenship under s 24 by reason of ss (6)(g). This section relates to circumstances in which the Court does not impose a sentence of imprisonment, and the person is released because they have given a security that they will comply with conditions relating to their behaviour. As a result of the surety, action may be taken against a person if that person fails to comply with the conditions.
7. Section 98 of the Crimes Sentencing Act provides that if a court suspects an offender may have failed to comply with any conditions of a good behaviour bond, the Court may call on the offender to appear before it. If the Court is then satisfied that the offender had breached any of the conditions of the bond, the Court may vary, or impose further conditions on the bond.
8. Accordingly, that authority of the Court to take action against an offender who breaches a bond, satisfies the requirement under s 24(6)(g) of the Act as during the bond period, action can be taken against the person under an Australian law because of the breach of a surety condition. The potential action in question is the variation of the bond conditions, or the imposing of further conditions on the bond.
9. It is not disputed in the present case that the Crimes Sentencing Act is an Australian law for the purposes of s 24 of the Act.
10. Mr Lew is a citizen of Korea who became a permanent resident in Australia on 20 September 2006. His application for Australian citizenship by conferral was made on 19 March 2009.
11. The High Court recently pointed out in Shi v Migration Agents Registration Authority [2008] HCA 31, that the Tribunal ‘steps into the shoes’ of the original decision-maker and, generally speaking, must apply the relevant law and factual circumstances in place at the time the decision is made by the Tribunal, except in circumstances where there are indications to the contrary. See also Re Smith and Defence Fund Retirement and Death Benefits Authority (1978) 1 ALD 374.
12. In the present case, there is no indication that the Tribunal should confine its consideration of the law or circumstances to those in place at the time the original decision was made. It is therefore open to the Tribunal to decide whether the citizenship application should be granted, having regard to circumstances and changes in the law that have taken place since the date of the original decision by the delegate.
13. The Applicant currently falls squarely within the provisions of s 24(6)(g) of the Act. As such, the Tribunal has no alternative but to comply with the statutory directive not to approve citizenship in the present circumstances.

CONCLUSION

14. The decision under review is therefore affirmed for the above reasons, and the correct and preferable decision is that the application must be refused.
    

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon B Tamberlin QC, Deputy President

Signed: ..............................................................................

Associate

Date/s of Hearing: 27 November 2009

Date of Decision: 10 December 2009

Appearance for the Applicant: Self- represented

Solicitor for the Respondent: J. Emery, DLA Phillips Fox