Gjergji and Minister for Home Affairs (Citizenship)

[2019] AATA 72

Gjergji and Minister for Home Affairs (Citizenship) [2019] AATA 72 (30 January 2019)

Division:GENERAL DIVISION

File Number(s):      2018/0910

Re:Albert Gjergji

APPLICANT

Minister for Home AffairsAnd  

RESPONDENT

DECISION

Tribunal:Deputy President Gary Humphries

Date:30 January 2019

Place:Canberra

The Tribunal sets aside the reviewable decision dated 16 February 2018 and remits the matter to the Minister for Home Affairs for reconsideration directing that Mr Gjergji is a person of good character for the purposes of s 21(2)(h) of the Australian Citizenship Act 2007.

........................................................................
Deputy President Gary Humphries

Catchwords

CITIZENSHIP – application for Australian citizenship by conferral – whether Mr Gjergji is a person of good character for the purposes of s 21(2)(h) of the Australian Citizenship Act 2007 – decision set aside and remitted.

Legislation

Australian Citizenship Act 2007 ss 21, 24,

Foreign Passports (Law Enforcement and Security) Act 2005

Cases

Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84

Secondary Materials

Australian Citizenship Instructions

Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016

1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees

REASONS FOR DECISION

Deputy President Gary Humphries

30 January 2019

INTRODUCTION

1. On 14 July 2016, Mr Albert Gjergji, the Applicant, applied for Australian citizenship by conferral pursuant to s 24 of the Australian Citizenship Act 2007 (the Act). On 16 February 2018, a delegate of the Minister for Home Affairs (the Minister) – the Respondent in these proceedings – refused to approve this application because the delegate was not satisfied that Mr Gjergji was of good character for the purposes of s 21(2)(h) of the Act (the reviewable decision). Mr Gjergji has applied to the Tribunal for merits review of this decision.

   ISSUE

2. Is Mr Gjergji of good character for the purposes of s 21(2)(h) of the Act?

   BACKGROUND

3. Mr Gjergji was born in Shkodër, Albania in 1986. In 2002, he fled Albania at the age of sixteen and entered Italy, apparently illegally. The (then) Department of Immigration and Citizenship’s (the Department, which term includes the present Department of Home Affairs) record of a decision granting him a Protection Visa (undated, but apparently made on 25 February 2013) notes that Mr Gjergji said that he was able to obtain temporary visas allowing him to work in Italy for periods of six months at a time, but he was required to return to Albania from time to time to facilitate renewal of his temporary work visa.

4. In a statutory declaration dated 18 April 2016 and filed with the Department, Mr Gjergji explained that he went to Italy because his family in Albania was involved in a blood feud with the Ndokaj family. An uncle of his father had been killed by a member of that family. His parents encouraged him to leave Albania when he was about 15 years old. He went to Italy. He further explained that restrictions on the movement of Albanians around Europe were eased in 2010, and he became very worried because I thought that I would be targeted in Italy by members of the Ndokaj family so I left Italy for Australia.

5. In a further statutory declaration dated 18 May 2018 Mr Gjergji explained his reason for obtaining a false passport:

   I used a false passport because I was desperate and at that time it was not easy for an Albanian single male to get a visa to Australia or indeed to other UNHCR Convention countries.

6. On 23 December 2011, Mr Gjergji arrived in Australia using a fraudulently-obtained Czech passport. Three weeks later, on 17 January 2012, he lodged an application for a Protection Visa in his true name of Albert Gjergji. In this application, he claimed to be an Albanian citizen. Included in the documents he submitted to the Department was a copy of the bio-data page of the false passport he had used to enter Australia.

7. On 25 February 2013, he was granted a Protection (Class XA) Visa.

8. On 2 July 2013, Mr Gjergji was charged with Cultivate Cannabis Plant – Artificially Enhanced Cultivation[1] and Possess Prescribed Equipment and, on 23 June 2014, these charges were listed for hearing in the Port Adelaide Magistrates Court. No convictions were recorded; however, he was fined $400 and $300 for each of the charges respectively.

   [1] In this decision, italicised text is generally used to indicate direct quotations.

9. On 14 July 2016, Mr Gjergji applied for Australian citizenship by conferral. On 16 February 2018, a delegate of the Minister refused Mr Gjergji’s application for Australian citizenship by conferral on the basis that he could not satisfy the good character requirement under s 21(2)(h) of the Act. On 17 February 2018, Mr Gjergji applied to the Tribunal seeking review of the reviewable decision.

10. The Tribunal heard Mr Gjergji’s application on 3 December 2018. At the hearing, Mr Gjergji was represented by Ms Marion Le while the Minister was represented by Ms Rachael Law. An Albanian interpreter, Ms Viola Bella, appeared by telephone.

    LEGISLATION

11. The Tribunal’s jurisdiction to review the decision of the Minister’s delegate to approve or refuse to approve a person becoming an Australian citizen is conferred by s 52(1)(b) of the Act.

12. Section 24(1) provides:

    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.

13. Section 24(1A) states:

    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), (3), (4), (5), (6), (7) or (8).

14. For the purposes of the current application, s 21(2)(h) of the Act relevantly provides:

    (2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person…

    (h)  is of good character at the time of the Minister's decision on the application.

15. The term good character is not defined in the Act. However, in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84, Lee J noted at [94] that:

    Unless the terms of the Act and regulations require some of the 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…

16. Significantly, Chapter 11 of the Citizenship Policy (the Policy) and Chapter 10 of the Australian Citizenship Instructions (the Instructions) provide guidance in relation to determining this question of good character. Unless there are cogent reasons not to do so, the Tribunal should generally apply lawful government policy: Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179.

17. Chapter 11 of the Policy provides:

    ‘Good character' refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and other commitments made through the pledge should they be approved for citizenship…

    The phrase ‘enduring moral qualities’ encompasses the following concepts:

    ·     characteristics which have been demonstrated over a very long period of time

    ·     distinguishing right from wrong

    ·     behaving in an ethical manner, conforming to the rules and values of Australian society.

    The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.

    This broad definition means that a decision maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship processes.

18. The Policy further provides that an applicant of good character would, among other things:

    ·     respect and abide by the law in Australia and other countries

    ·     be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds)

    ·     be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:

    o   providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications…

19. In weighing up the character decision, the Policy offers this guidance:

    Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of 'good character' requires the consideration of an aggregate of qualities. Decision makers should place more weight on significant offences.

    In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:

    ·     would a person of good character have behaved the way the applicant did

    ·     what is there to demonstrate that the applicant has upheld and obeyed the law

    ·     has the applicant behaved in accordance with Australia's community standards

    ·     does the applicant share Australia's democratic beliefs and respects its rights and liberties.

20. Furthermore, the issue of good character requires a holistic examination of a person’s behaviour across time. The Tribunal’s remarks in Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 (at [8]) support that proposition:

    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.

21. The following passage in Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 (at [7]) is pertinent to the question of good character:

    …despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.

    MINISTER’S CONTENTIONS

22. The Minister contends that the Tribunal cannot be satisfied Mr Gjergji is of good character because of the following factors:

    (a)Despite possessing a valid Albanian passport at the relevant time, Mr Gjergji used a fraudulent Czech passport to enter Australia on 23 December 2011. The Minister submitted that this demonstrated he had not been honest in his dealings with the Australian government.

    (b)Also demonstrating dishonesty, it was submitted, was that Mr Gjergji had provided inconsistent explanations for the procurement and use of a false passport to facilitate his entry into Australia.

    (c)His two cannabis offences in July 2013 demonstrated he was not of good character.

    (d)Mr Gjergji’s character references were inadequate to offset the factors mentioned above demonstrating he was not of good character. Specifically, of the eight references provided, five do not make reference to his arrival in Australia, and in particular none refer specifically to the procurement and use of a false passport. Six of the statements do not make any reference to Mr Gjergji's criminal offences. Accordingly, the Minister submitted that the Tribunal should give these statements little weight.

23. The Minister argued that, taken in aggregate, the four factors above demonstrate that Mr Gjergji is not of good character.

    CONSIDERATION

    Mr Gjergji’s use of a fraudulent passport

24. It was admitted by counsel for Mr Gjergji that he had entered Australia in December 2011 using a false passport. The Minister’s submissions placed some emphasis on Mr Gjergji’s disclosure of this fact at an interview with the department on 2 May 2012, but this somewhat misstates the facts; in fact Mr Gjergji had disclosed his use of a false passport to the Department within three weeks of entering Australia.

25. The Minister referred the Tribunal to s 21(2) of the Foreign Passports (Law Enforcement and Security) Act 2005 (the Foreign Passports Act), which provides that a person commits an offence if he or she uses a foreign travel document in connection with travel or identification and the document was not issued to that person. The maximum penalty for this offence is imprisonment for 10 years or 1,000 penalty units, or both. This penalty, the Minister said, demonstrates the severity of the offence.

26. The use of a fraudulent passport was also said to go against a finding of good character, given that the Instructions suggest:

    9.3.4 An applicant who is of good character

    An applicant of good character would:

    ...be truthful and not practise deception or fraud in their dealings with the Australian government

27. Counsel for Mr Gjergji, however, directed the Tribunal to Article 31 of the Convention and Protocol Relating to the Status of Refugees (the Refugee Convention) which provides:

    The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

    The Tribunal infers from the granting by the Department of a Protection (Class XA) Visa to Mr Gjergji in February 2013 that it considered him to be a refugee. Indeed, at the hearing it was common ground between the parties that Article 31 of the Convention applied to him. Counsel for the Minister conceded that, because Article 31 applies to Mr Gjergji, no adverse findings may be made against him in regards to his use of a false passport – certainly in the Protection Visa context.

28. The Tribunal also notes that no prosecution appears to have been launched against Mr Gjergji for an offence against the Foreign Passports Act, despite his admission that he used a false passport. In the circumstances, the Tribunal’s impression was that the Minister did not press the argument that the use of a false passport derogates from Mr Gjergji’s good character.

29. However, a further argument was advanced by the Minister at the hearing which had not been set out in his statement of facts, issues and contentions filed three months previously. This argument was that Mr Gjergji had failed to disclose his use of a false passport in his application for citizenship by conferral. It was contended that, in the special, privileged context of Australian citizenship, Mr Gjergji’s failure to disclose on his citizenship application form his previous use of a fraudulent passport should be viewed by the Tribunal as an example of his dishonesty.

30. The Tribunal was concerned about the deployment of this argument without what could be regarded as proper notice to the applicant. In any event, the argument lacks substance and is easily disposed of. Counsel for Mr Gjergji pointed out that he had already disclosed the use of a false passport long before making his application for citizenship. An attempt to conceal what had already been disclosed could only be described as ham-fisted. In addition it was observed that the form then in use for applying for citizenship did not appear to require the disclosure of such information. No part of the form specifically addresses the matter. Counsel for the Minister suggested that it may have been appropriate to disclose this fact when answering Question 35 on the form. Question 35(a), for example, states:

    Have you been convicted of, or found guilty of, ANY offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any ‘spent’ convictions)?

    Of course, Mr Gjergji has never been charged, much less convicted, of any offence relating to his use of the false Czech passport. There does not appear to be any other part of the form where information about the use of a false passport might be said to be required.

31. Whilst it must be conceded that Mr Gjergji did, in one sense, mislead the Australian government by presenting a false passport on his entry into Australia, it is difficult to see how this can be said to cast aspersions on his character given that precisely this action is protected by international law, specifically the Refugee Convention to which Australia is a party. The Tribunal is not persuaded, for these reasons, that Mr Gjergji’s use of a false passport demonstrates dishonesty, nor was it demonstrated by failing to mention that fact in connection with his application for citizenship.

    Mr Gjergji had provided inconsistent explanations for the use of a false passport to enter Australia

32. The Tribunal confesses to some difficulty in understanding the Minister’s contentions here.

33. The factual circumstances surrounding Mr Gjergji leaving Albania and his use of a false passport to come to Australia are set out in paragraphs 3-6 above. Those circumstances appear to the Tribunal to be consistent with the documents tendered to the Tribunal and with the evidence given by Mr Gjergji at the hearing. For example, in cross-examination, counsel for the Minister asked Mr Gjergji to clarify why he used a false passport to travel to Australia from Italy. He responded:

    I was in danger… it was impossible with the Albanian passport to come in here to Australia… my life was in danger – I had to leave the country as soon as possible.

34. The Minister nonetheless maintained that Mr Gjergji had provided inconsistent explanations for his use of the false passport. Specifically, in his filed statement of facts, issues and contentions the Minister submitted:

    …[Mr Gjergji] has provided inconsistent explanations… for the procurement and use of the false passport (that it was not easy for a single Albanian male to get a visa to Australia, and a Czech National could obtain a visa far more easily and quickly, cf. that he was desperate to go to Australia because of the threat to his life from the blood feud, and further cf. wanting to leave Italy urgently because of the removal of a restriction on the movement of Albanians in 2010 meant he felt unsafe in Italy).

35. With respect, the facts cited in parentheses in this paragraph, detailing the so-called inconsistent explanations, are non sequiturs. The asserted inconsistencies are not apparent to the Tribunal. I note in this respect the Department’s finding in its 23 February 2013 decision on his Protection Visa that Mr Gjergji’s written evidence and verbal testimony are coherent and that it accepts that he provided a plausible account of his background and personal circumstances.

36. No further flesh was placed on the bones of this contention during the hearing. If an argument is advanced by the Minister in the Tribunal as providing the basis for a finding that an applicant is not a good character, the Minister must make good on that argument. The Minister has not done so in this case.

    Mr Gjergji’s criminal history including cultivates cannabis plant – artificially enhanced cultivation and possess prescribed equipment

37. Mr Gjergji was open about these charges and open about the fact that he was fined $400 and $300 respectively on account of the charges. Counsel for the Minister conceded that point 9.5.2 of the Instructions states that offences which do not lead to a conviction or a sentence are minor offences. Notwithstanding this fact, the Minister contends that these charges must be taken into account in determining the question of good character and that Mr Gjergji’s actions tend to reflect a pattern of behaviour inconsistent with Australian values.

1. While the Tribunal acknowledges that these charges weigh against Mr Gjergji, it is nonetheless of the view that – based on the Magistrate’s decision and point 9.5.2 of the Instructions – they are ultimately not matters of sufficient weight to offset the other evidence before the Tribunal of Mr Gjergji’s good character.

2. Furthermore, the Tribunal has considered the mitigating factors outlined in 9.5.2 of the Instructions. Mr Gjergji has accepted responsibility and shown remorse for his conduct; I accept that he has made a conscious effort to obey and uphold Australian laws; and there is evidence before the Tribunal of his commitment to his employment and to community involvement.

   Character statements

3. Mr Gjergji tendered eight character references. All are in the form of a statutory declaration, as recommended by the Policy (page 155). They are provided by an employer and by work colleagues, by friends and acquaintances. Unlike many character references typically put before this Tribunal, each of these witnesses for Mr Gjergji appears to have composed their own tribute to him personally. Each appears to exhibit strong personal regard for him, and to be heartfelt. Overall, they create the impression of a hard-working, diligent person who takes seriously his obligations as a resident, an employee and a taxpayer.

4. The Minister’s criticism of the references relates to what they do not say. He contended that five do not make reference to his arrival in Australia – specifically, none refer to the procurement and use of a false passport – and six do not make any reference to Mr Gjergji's criminal offences. He also contended that the statements do not mention any change in behaviour or any real detail about the applicant’s lifestyle. The references should therefore carry little weight, it was contended.

5. With respect, careful perusal of the references does not support the Minister’s characterisation. All but one of the references touch upon either the manner of his entry into Australia or his cannabis offences or, in the case of two references, to both. The references to those matters are sometimes oblique, but in each case demonstrate that the deponent was aware that Mr Gjergji was involved in a subterfuge to enter Australia and/or had committed offences relating to drugs. It is not necessary that a character referee have been given very specific details or documentation in relation to offences, provided that it is clear that the referee appreciates the essence and gravity of an applicant’s criminality, and that their comments on his character are framed in that light. Of course, in the present case, it must be doubted that any “offence” was committed by Mr Gjergji with respect to entering Australia.

6. The statutory declaration of Tony Ferrante dated 4 May 2018 provides some of the flavour of the character evidence about Mr Gjergji before the Tribunal. It states:

   My name is Tony Ferrante. I am an Australian Citizen, and I own/manage Tile Rite Tiling. I have known Albert for five years. During this time, I got to know him as a hardworking, caring and respectable person who gets along with other workers and is respected by all in the building industries. He has also been an outstanding citizen helping friends and neighbours and teaching young apprentices in the workplace.

   He has come a long way since arriving in Australia on a different passport due to the blood family feud in his country and needing protection, quite traumatic for a young guy to go through. I am also aware of an incident that took place in 2013. Albert was fined for “cannabis” but has no criminal offence to his name. I can assure you that he would not be repeating that same mistake again, as it was poor judgment and desperation on his part and definitely not in his character.

   Albert has worked very hard to get himself where he is today, home owner with a mortgage, owns his own care and pays taxes on time always. He is not a drinker, gambler or smoker, he helps out as a worker or as a friend when needed and I can rely on him 100% as he is my main tiler who I completely trust.

   He has patiently waited to apply for his citizenship and has worked hard to be an outstanding individual. He is none of the most dependable, conscientious, honest people I have ever met and would be an excellent addition to the country and our community.

7. It is abundantly clear that Mr Ferrante had a good appreciation of the circumstances of Mr Gjergji’s arrival in Australia and his use of a false passport, and of his cannabis convictions in 2013. The reference also highlights Mr Gjergji’s lifestyle and positive changes in his behaviour, in terms that go to his credit. The other character references only add to that general picture.

8. The Policy sets out what a decision-maker should look for in a character reference:

   More weight should be given to references made as statutory declarations than those which are not. References should come from members of the community who have observed the applicant at work or in other contexts, and who are willing to provide contact details. Referees should also explain how long they have known the applicant for, and the context of their relationship.

   The references provided on behalf of Mr Gjergji meet virtually all of these criteria.

9. While noting what the Policy refers to as the inherent bias in any reference which is submitted by an applicant, it seems to me that the references submitted here do provide the Tribunal with comfortable satisfaction Mr Gjergji is a person of good character in the sense required by s 21(2) of the Act.

   CONCLUSION

10. Pursuant to s 21(2) of the Act, the Tribunal must be satisfied that Mr Gjergji is a person of good character. For the reasons set out above, the Tribunal is of the view that Mr Gjergji is – on balance and in aggregate – a person of good character. The evidence before the Tribunal demonstrates that he has, notwithstanding one lapse, respected and abided by the law in Australia and other countries; been honest and financially responsible; been truthful in his dealings with the Australian government despite the use of a false passport; and has behaved in accordance with Australia’s community standards.

11. Furthermore, the various character references lodged with the Tribunal show that Mr Gjergji is essentially respected and liked in his community, helpful, diligent and hard-working – factors which demonstrate enduring moral qualities. Accordingly, the Tribunal sets aside the reviewable decision dated 16 February 2018 and remits the matter to the Minister for reconsideration with the direction that Mr Gjergji is a person of good character for the purposes of s 21(2)(h) of the Act.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of

........................................................................

Associate

Dated: 30 January 2019

Date(s) of hearing:	3 December 2018
Date final submissions received:	3 December 2018
Advocate for Mr Gjergji:	Ms Marion Le, Marion Le Consultancy
Solicitors for the Minister:	Ms Rachael Law, Clayton Utz