Kola and Minister for Immigration and Border Protection (Citizenship)

[2019] AATA 9

Kola and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 9 (9 January 2019)

Division:GENERAL DIVISION

File Number:           2017/6418

Re:Bledar Kola

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Mr A. Maryniak QC, Member

Date:9 January 2019

Place:Melbourne

The Tribunal affirms the decision under review.

[sgd].......................................................................

Mr A. Maryniak QC, Member

Catchwords

CITIZENSHIP – failure of character test – property offences – drug offences – dishonesty offences – decision affirmed

Legislation

Australian Citizenship Act 2007 (Cth)

Migration Act 1958 (Cth)

Drugs, Poisons and Controlled Substances Act1981 (Vic)

Cases

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

ReDrake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; 24 ALR 577; 2 ALD 60

Zheng v Minister for Immigration and Citizenship [2011] AATA 304

Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313

Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931

Secondary Materials

Citizenship Policy, DIBP – 1 June 2016 (Chapter 11 - Character)

REASONS FOR DECISION

Mr A. Maryniak QC, Member

9 January 2019

1. This is an application for review of a decision of a delegate of the Minister for Immigration and Border Protection (the Respondent) under s 24 of the Australian Citizenship Act 2007 (the Act) to refuse Mr Bledar Kola’s (the Applicant) application to become an Australian citizen.

2. The hearing took place on 15 June 2018. The Applicant, together with Erisa Rroshi and Klement Kola gave evidence and were cross-examined. The Respondent lodged documents under s 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents and the Supplementary T documents.) In addition to the T Documents and Supplementary T Documents (Exhibit R1), the parties tendered the following documentary material  into evidence:

   ·a bundle of four statutory declarations and one statement (in support of the applicant) (Exhibit A1); and

   ·the decision of the Refugee Review Tribunal relating to the Applicant (Exhibit R2)

   BACKGROUND

3. The Applicant is a 41-year-old Albanian citizen.  He first arrived in Australia on 14 February 2000 and obtained several bridging visas before departing in 2007.  Upon returning to Australia as the holder of a temporary partner visa, the Applicant was arrested at Melbourne airport on 10 June 2008 in relation to offences committed before his departure in 2007.

4. Details of the Applicant’s  offences in Australia and  their consequences are set out below.

Court	Date	Offence	Result
Melbourne County Court (Vic)	06/02/2009	Cultivate Narcotic Plant – Cannabis	18 Months Imprisonment
Melbourne County Court (Vic)	06/02/2009	Theft (2 charges)	6 months imprisonment on each count (concurrent)
Melbourne County Court (Vic)	06/02/2009	Use a False document to Prejudice Other (5 charges)	3 months imprisonment on each count (concurrent) Total 2 years to pay $17,740
Broadmeadows Magistrate Court (Vic)	24/10/2003	Cultivate Narcotic Plant – Cannabis Possess Cannabis	Aggregate 3 months imprisonment (concurrent).  To be served by way of an Intensive Correction Order
Broadmeadows Magistrate Court (Vic)	24/10/2003	Theft	Aggregate 3 months imprisonment (concurrent).  To be served by way of an Intensive Correction Order.  Pay compensation of $3,004.75

LEGISLATION

1. A person is eligible to become an Australian citizen if the Minister is satisfied that he or she meets the requirements in s 21(2) of the Act.  They include the requirement that a person be ‘of good character’ at the time of the Minister’s decision on the application         (s 21(2)(h) of the Act).  Whether the Applicant is of good character is the only issue before the Tribunal.

2. The term ‘good character’ is not defined in the Act.  The Federal Court has held, in an often-quoted and applied statement of principle, that:

   “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 and 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.”[1]

   [1]           Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431.

3. The Tribunal, in assessing the Applicant’s character, needs to be ‘satisfied’ that the Applicant is, or is not, of good character.  The assessment is an objective one, made on the basis of known facts, and involves a holistic look at the Applicant’s behaviour over the enduring period.

4. Although not bound to do so, the Tribunal may have regard to the Department’s Citizenship Policy (Policy) in interpreting and applying the relevant provisions of the Act unless ‘there are cogent reasons to the contrary’.[2] The Tribunal considers there are no such reasons and the Policy can be appropriately applied in this matter.

   [2]           ReDrake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; 24 ALR 577; 2 ALD 60

5. In applying the Policy, the phrase ’enduring moral qualities’ encompasses characteristics which have been demonstrated over a very long period of time. These include distinguishing right from wrong, behaving in an ethical manner and conforming to the rules and values of Australian society. The Policy is not to be applied in an inflexible manner but according to the specific circumstances of the case. The Preamble to the Act is also of assistance in this task.[3]

   [3]           Zheng v Minister for Immigration and Citizenship [2011] AATA 304, Forgie D.P.

6. The Tribunal has considered the content of all the documentary material tendered during the hearing, including the four statements comprising A1.

   RELEVANT FACTS AND CONSIDERATION

7. Subsequent to his arrest in 2008, the Applicant served a  term of imprisonment related to the charges set out in paragraph [4] above and was released on parole on 4 December 2009.

8. The Applicant accepts he has a criminal history including serious offending, and that this weighs against his application for Australian citizenship.  He submits that his most recent offending was in 2007, to which the 2009 sentence relates, and contends he has not offended further since his release from prison.

9. He submits that he has learnt his lesson, has undergone rehabilitative programmes in prison, has ceased all use of illicit drugs and now devotes his life to his family.  The Applicant now appreciates the great harm his offending has done to the Australian community and he says he will not offend again.  The Tribunal found him to be an honest witness and he did appear remorseful.

10. The Tribunal has taken into account all of the evidence, including that given orally and the content of the statements lodged in favour of the Applicant.  This evidence only assists to a limited degree because the Tribunal must be satisfied that the Applicant is of ‘good character’ objectively.  The Tribunal notes that in 2010 the then Respondent decided not to refuse the Applicant’s earlier application for a partner visa on character grounds.

11. The Respondent contends, and the Tribunal agrees, that the Applicant’s convictions are very serious. The Respondent also highlighted the following inconsistencies in the various disclosures the Applicant has made in the past and his statement lodged with the Tribunal in this matter.  The Respondent submitted:

    “25.1    First, in support of his citizenship application the applicant provided a statutory declaration in which he claimed he was at a ‘very young’ age when he committed the offences.[4]  However, he was around 30 years old at the time of his most recent offending.

    25.2Second, the applicant now claims that he was not involved in the theft of electricity or the growing of marijuana at the Blyth Street property in 2007.[5]  However, he previously plead guilty to, and was convicted of, those offences.  It is not open to this Tribunal to go behind the Victorian County Court’s findings in relation to the applicant’s guilt in this respect.[6]

    25.3Third, there are numerous inconsistencies between the Applicant’s 2018 declaration and his apparent statements to his psychologist and the Victorian County Court.  Specifically:

    25.3.1The applicant appears to have told his psychologist in 2010 that “he never abused cannabis in Albania to the same degree he did in Australia”.[7]  However, in the Applicant’s 2018 declaration he stated that he first used drugs in Australia, and did not smoke marijuana after he left Australia in 2007.[8]  It therefore appears the applicant has deliberately omitted details of his drug use in Albania from his most recent statement.

    25.3.2In November 2010, the applicant’s psychologist noted that the applicant had stopped smoking cannabis for ‘some months’.[9]  Similarly in 2018, the applicant told his psychologist that he ‘had not used cannabis since 2010’.[10]  However, in the Applicant’s 2018 declaration he states ‘very clearly’ that he has ‘not committed any offence since 2007’.[11]  Unless the applicant suggests that he is not aware that smoking cannabis is an offence,[12] he would again appear to have deliberately omitted details of around 3 years of drug use in his most recent statement, including drug use after his release from prison on parole.

    25.3.3.In 2009, the Judge Shelton noted that the applicant was ‘no longer abusing cannabis’.[13]  However, as set out above the applicant later told his psychologist in 2010 and 2018 that he continued to use cannabis into 2010.

    26The applicant’s attempt to now suggest that he is innocent of crimes he has been convicted of and to downplay his responsibility for his offending is strong evidence that he continues to not be of good character in his selected description of his previous drug use in his evidence before the Tribunal.”

    [4]           T12 p 114(4)-(5).

    [5] Applicant’s 2018 declaration [35].

    [6]           Minister for Immigration and Multicultural Affairs v All (2000) 106 FCR 313 at [45]-[46].

    [7]           Report of Mr Edwin Kleynhans dated 10 November 2010 (2010 Kleynhana report) p 4.

    [8] [20], [34].

    [9]           2010 Kleynhans report p 6.

    [10]          Report of Mr Edwin Kleynhans dated 23 February 2018 (2018 Kleynhans report) p 4.

    [11] [41].

    [12] It is an offence under s 75 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

    [13] STD2 p 9 [12].

12. Furthermore, the Respondent submits the fact that the Applicant’s visa was not cancelled in 2010 on character grounds under the Migration Act 1958 does not equate to him being of ‘good character’ for the purposes of s 21(2)(h) of the Act. The Tribunal agrees, and considers that the regulatory purpose and nature of each regime is distinct. The Tribunal also considers that Australian citizenship is a higher privilege which is not to be bestowed lightly.[14]

    [14]          Fenn v Minister for Immigration and Multicultural Affairs; D.P. Breen; [2000] AATA 931 at [8].

13. In assessing whether the Applicant is currently of good character the Tribunal takes particular note of Lee J’s judgment in Irving, which the Policy refers to:

    A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character…

14. The Tribunal accepts that the Applicant has made substantial efforts at improving his life in recent years, in a manner which exhibits the qualities of being of good character. It is implicit that such efforts over a prolonged period point positively towards the Applicant having reformed from his previously bad behaviour.

15. However, this must be tempered by the gravity of the Applicant’s offending which was serious, occurred on more than one occasion, and first commenced shortly after his arrival in Australia.  Despite the character references and evidence of good behaviour over recent years, the Tribunal is of the view that objectively the Applicant is yet to be of good behaviour for a sufficiently long period since his offending. 

16. The Tribunal notes however that if the Applicant persists in maintaining a positive lifestyle and exhibiting good behaviour, he may subsequently be found to be of good character. Therefore,  he is  not precluded from making a fresh application for citizenship in the future.

    DECISION

17. The Tribunal affirms the decision to refuse the Applicant’s application for Australian citizenship, on this occasion.

I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak QC

[sgd]........................................................................

Associate

Dated: 9 January 2019

Date of hearing:	15 June 2018
Counsel for the Applicant:	Angel Aleksov
Solicitors for the Applicant:	Erskine Rodan & Associates
Advocate for the Respondent:	David Brown
Solicitors for the Respondent:	Australian Government Solicitor