Lleshi and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 1029
•17 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1029
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/371
GENERAL ADMINISTRATIVE DIVISION ) Re LEKE LLESHI Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Senior Member L Hastwell Date17 October 2005
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – citizenship – refusal to grant – prior offences – Australian Citizenship Instructions – whether of good character – period of time since offences – failure to truthfully account to Tribunal – decision affirmed
Australian Citizenship Act 1948 s 13
Controlled Substances Act 1984 s 32
Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771
Minister for Immigration and Ethnic Affairs v Gungor(1981) 4 ALD 575
Re Bilouni and Minister for Immigration and Multicultural Affairs [2001] AATA 233
Re Twilley and Minister for Immigration, Multicultural and Indigenous Affairs [2004] AATA 1213REASONS FOR DECISION
17 October 2005 Senior Member L Hastwell 1. Leke Lleshi (the applicant) is an Albanian National. He came to Australia as a refugee in 1999. He has since been granted a Protection Visa.
2. On 30 October 2003 the applicant applied to the delegate of the respondent (the Department) for a grant of citizenship. That application was refused on 6 October 2004. The reason given for the refusal was that the applicant did not satisfy the requirement of good character as required by the relevant enactment. The applicant seeks a review of that decision to this Tribunal.
background
3. The applicant has been married for 22 years. His wife and two children were granted Australian Citizenship in 2004. His children were aged 9 years and 18 years at the date of the hearing. They continue to live as a family in Adelaide.
4. The applicant has been charged with and has pleaded guilty to two criminal offences since coming to Australia. Each offence related to the possession and cultivation of cannabis. He has also been charged and convicted with respect to one traffic offence since his arrival in Australia, namely driving an unregistered vehicle. He did not declare that traffic conviction in his application for citizenship dated 27 October 2003. He swore in a declaration at the time that the information contained in his application was correct.
5. It is these offences and the failure to declare the traffic conviction in the declaration that has lead the Department to the conclusion that the applicant is not of good character. He now seeks a review of the Department’s decision to refuse him citizenship.
legislation
6. The criteria for the grant of Australian Citizenship are contained in s 13 of the Australian Citizenship Act 1948 (the Act). The Department is satisfied that the applicant satisfied all requirements of the Act, save for the requirement of good character as set out in s 13(1)(f) which provides as follows:
“(1)Subject to this section, the Minister may, in the Minister’s discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:
…
(f) the person is of good character;
…”
7. Policy Guidelines have been approved by the Minister to assist the delegates in exercising their powers under the Act. The Australian Citizenship Instructions (the Instructions) provide inter alia in paragraph 5:
“5.4 GOOD CHARACTER REQUIREMENT - s 13(1)(f)
5.4.1Applicants for grant of Australian citizenship under s 13(1) are required to be "of good character":
•If an applicant fails to satisfy the Minister’s delegate that s/he is of good character, the application cannot be approved (it must be deferred or refused, as appropriate).
• For other applications under s13, it is a policy requirement. Although policy cannot be applied inflexibly, such an applicant who is deemed to be not of good character would be approved only in the most exceptional cases.
5.4.2The term 'good character' is not defined in the Act, so decision makers should be guided by the ordinary use of the words in making assessments. It is the responsibility of the applicant to show that they are of good character. An applicant may be presumed to be of good character unless there is evidence to the contrary. In most cases, such evidence would be in the form of a serious criminal record, however, general conduct and associations may also be relevant.
5.4.3 If there is evidence to suggest that an applicant may not be of good character, the applicant must address this evidence and establish whether he/she is in fact of good character. An applicant's behaviour does not have to be faultless, but the aggregate of his or her qualities must be weighed against ordinary community standards of behaviour.
5.4.4 Assessment of good character involves:
• establishing whether or not an applicant has a criminal record or whether there is other information which suggests they may not be of good character;
•according procedural fairness to the applicant where there is credible, relevant, adverse information on their character (see 5.1); and
•considering the full circumstances relating to the relevant matters and evidence of the applicant's behaviour since then. Factors to be considered include, but are not limited to, those in the following paragraphs.
5.4.5Under current policy the Minister has directed that very careful consideration should be given to the issue of whether an applicant is of good character, in accordance with paragraphs 5.4.6 - 5.4.15, if there is evidence that the applicant:
(a)has, at any time, been sentenced to:
-death;
- imprisonment for life;
- a term of imprisonment of 12 months or more;
-2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;
(b)is a serious repeat offender (see 5.3.9 - 5.3.11);
…
5.4.7Consider the seriousness of any offences committed by the applicant in the context of ordinary community standards. For example, crimes of violence, sexual abuse, drug trafficking, major fraud, harassment, stalking, armed robbery, crimes against children and other crimes which have incurred a prison sentence or sentences totalling 12 months or more are ordinarily considered to be serious, and should be given due weight in an assessment. Alternatively, less serious offences would be reflected by the leniency of a sentence and, possibly, in the remarks of the sentencing Judge, if available.
…
5.4.11Consider whether a crime was a one-off occurrence that can now be considered "out of character", or whether the person's criminal record shows repeated offences and a pattern of unlawful behaviour which would suggest that the applicant is not of good character. Where the offence was not out of character, consider whether the applicant has been rehabilitated (see 5.4.13 – 5.4.17).
…”
issues for determination
8. The issue for the Tribunal to consider is whether the applicant is of good character such that he should be entitled to receive Australian Citizenship.
the hearing
9. The applicant gave evidence with the assistance of an interpreter in the Albanian language. His wife gave evidence. The Department did not call any witnesses. The T documents and supplementary T documents were received into evidence. Subsequent to the hearing, and with the parties consent, the Tribunal received into evidence the remarks on penalty of the sentencing Magistrate with respect to each of the offences involving cannabis to which the applicant had pleaded guilty.
10. The applicant was at times very emotional when giving his evidence. He denied any knowledge as to the nature of the plants that he was growing when charged on the first occasion, and he blamed a teenage relative for his involvement in the offence. He told the Tribunal that he believed that he was growing a form of tobacco for this relative, and he denied any criminal intent. He said that he was unaware of the consequences of growing the plants at the time.
11. With respect to the second offence of cultivating and possessing marihuana that occurred within a year of the first offence, the applicant once more cast the primary responsibility on the same third party. He admitted that by that time he had taken a liking to marihuana, and had become a smoker of the drug. He admitted that his family was aware of the plants growing in the home, including his teenage son.
12. With respect to the traffic offence and his failure to include it on his application for citizenship, the applicant was adamant it was an oversight and that he did not realize he should have declared that offence. He pointed out that someone else had filled in the form for him under his instruction.
13. The applicant’s wife was clearly distressed by the events that had resulted in him being charged on two occasions with criminal offences. She was also troubled by his failure to obtain citizenship. She said that he was a good husband and father and she became emotional when talking about the trouble the marihuana offences had caused in their life. She commented that they knew what they were doing was wrong, and that they had been at pains to try to prevent the children coming into contact with the drugs that were being grown in the house.
14. The Tribunal preferred the evidence of the applicant’s wife on the issue of whether the applicant knew what he was doing was contrary to the criminal law.
15. A number of letters of character reference were put to the Tribunal, and are contained in the documents at T27 to T35. None of the witnesses were called to give evidence, and a number of the letters were undated. The weight to be given to those references was further undermined by the fact that there was no indication that any of the referees had any knowledge of the criminal offences with which the applicant had been charged. In the circumstances the Tribunal did not find these references particularly helpful, and attached little weight to them
findings of fact
16. The Tribunal makes the following findings:
·The applicant came to Australia from Albania as a refugee in 1999 and was granted a Protection Visa in 2001. His wife and children came to Australia shortly before the applicant.
·From soon after coming to Australia he has resided in Adelaide with his wife and two children. He has what appears to be a stable marriage, and he has been married for over 20 years.
·On 21 July 2001 the applicant was charged with driving an unregistered vehicle. He subsequently pleaded guilty to the charge. He was convicted and fined $50.00.
·On 16 June 2001 the applicant was found by police with eleven marihuana plants growing on his premises and in his possession. When police attended at his home they found five plants growing hydroponically in a bedroom of his home. A further six plants were being hydroponically grown in a partitioned sealed room in a rear shed. He was subsequently charged with an offence under s 32(1)(a) of the Controlled Substances Act 1984 (the State Act).
·The set up of each growing room was quite sophisticated. The plants were supported on a mesh about 1.4 metres from the ground to encourage them to grow vertically rather than horizontally. They were growing under lights. The plants were deliberately concealed from public observation.
·The applicant told the police on that occasion that these were his plants and that he had planted them himself. He checked them once a day and was growing them for his own use.
·The applicant pleaded guilty to an offence under s 32(1)(a) of the State Act. That provision makes it an offence to cultivate and possess marihuana for personal use. He was dealt with by the Magistrates Court on 15 October 2001. An agreed statement of facts was put to the Magistrate. The Magistrate in her sentencing remarks commented as follows:
“… that many plants is well in excess of what a citizen would need for even heavy cannabis use, by law I am bound to accept the version of facts that has been agreed between the defendant and prosecution. …”
·He was fined the maximum fine allowable under that section of the State Act, and his hydroponics equipment was confiscated. The Magistrate also warned him that she did not believe that all police would consider that such a large quantity of plants was for personal use only.
·Between June or at the latest October 2001 and May 2002 the applicant acquired further hydroponic equipment, and set about growing marihuana once more in a bedroom of his home. When the police came to his premises on 2 May 2002 they found three large (1 metre high) marihuana plants growing in the bedroom of the home. They also found that the partitioned area in the shed had been set up once more with hydroponic equipment, however there were no plants growing in the shed on that occasion.
·The police also found $10,000.00 in cash under a bed in his home when they attended at the premises on this occasion. The applicant was initially charged with respect to these funds. He persuaded police that these were funds that he had failed to declare when entering Australia, and the charges were dropped.
·The applicant was charged again under s 32(1)(a) of the State Act, and he pleaded guilty once more. This time he had legal representation, and the charges were not finally dealt with for some months. On 16 January 2003 he was sentenced by Magistrate Brown. His sentencing remarks include the comment that:
“… a forthcoming application for Australian citizenship may be jeopardized if I record a conviction. There is no information before me as to the effect a conviction might have. …”
·The applicant knew at all relevant times that the cultivation of marihuana was illegal and contrary to the criminal law. On his own admission, he worked in association with another party who assisted him plant the first crop, and possibly the second. The police accepted that he was using the marihuana for his own use only, despite finding no implements for the use of marihuana at the applicant’s home. The applicant was very fortunate that the police were prepared to entertain this view as the circumstantial evidence available at the time appeared capable of giving rise to more serious charges under the State Act.
·The applicant appears not to have intentionally made a false declaration when filling in his declaration with respect to citizenship. He presented as being genuine in his belief that the offence of driving an unregistered vehicle came within the category of offences that need not be disclosed. Alternatively, he suggested that he had either forgotten that incident or he did not read properly the form filled out on his behalf. There would be no logic at all in him disclosing the criminal offences and not the traffic offence. The Tribunal is satisfied that the error in the declaration was probably a genuine oversight by the applicant.
·The applicant and his wife reside in a small three bedroom home. At the time of these offences the applicant’s son was in his early to mid teens. He was forced to share a room with his much younger sister to free up a room for the applicant to grow his marihuana in. The applicant and his wife knew that the applicant’s enterprise was illegal and they endeavoured to keep the children from that room. It is extremely likely that their son at least was aware of the nature of his father’s horticultural pursuits.
·On his own account the applicant failed to declare funds that he brought into the country when entering Australia in 1999.
consideration and application of the law
17. The Tribunal must determine whether the applicant is of “good character”. The concept of good character is not defined in the Act. The Department has issued the Instructions which have been approved by the Minister to assist decision makers in determining that issue. The Instructions are a guide only and do not have the force of law. The Instructions point out that a decision maker ”… should be guided by the ordinary use of the words in making assessments…”.
18. The Department referred the Tribunal to the comments of Deputy President Chappell in Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771 at 776:
“… The standard of good character should be even higher for citizenship cases than s 501 [visa] matters because of the importance of citizenship and the greater responsibilities and privileges attached to [citizenship]. …”
19. The facts of this case do not put the applicant squarely into one of the situations described in the Instructions in paragraph 5.4.5(a) or (b). He has never been imprisoned and he is not what could be described as a serious repeat offender. Nevertheless the Tribunal must have regard to his previous pattern of behaviour and to his behaviour at the time that the Tribunal is considering its decision. His behaviour must also be judged against the standards of behaviour expected by our community.
20. The Tribunal in this instance was troubled by a number of features of the applicant’s case. The applicant’s first offence for cultivating marihuana was at the more serious end of the spectrum in terms of the offence with which he was charged.
21. The applicant received a maximum fine for the first offence, and the remarks of the sentencing Magistrate suggest that she had her own reservations about the fact that he had been charged with one of the less serious offences under that particular provision of the Act. The offence was a carefully pre-meditated offence. The applicant had a quite sophisticated hydroponic system with lights set up in his home to grow marihuana. He had not one plant, but eleven plants. They were deliberately concealed. His children were forced to share a room to enable this crop to flourish in a third bedroom. His teenage son was inevitably exposed to the fact that his father was growing a large herbaceous crop in a bedroom that otherwise would have been his.
22. The applicant presented a new and entirely implausible story to the Tribunal about this offence. He laid all the blame on a relative who was a teenager at the time of the offence, and now maintained that he had no idea that he was cultivating an illegal crop at the time. He told the Tribunal that he believed the first crop was a form of tobacco that he grew for his nephew. He told the police a different story at the time, admitting that he knew that he was cultivating an illegal crop. He did not implicate his relative to the police or to the Magistrates Court. The fact that the applicant has now produced this implausible story for the Tribunal of itself goes to the issue of good character. He showed little regard for the truth in giving his evidence, and it appears was still not willing to face up to his responsibility for his actions at the time in an honest way. The Tribunal is satisfied that he lied under oath to the Tribunal on this point, and in itself that shows a serious flaw in the applicant’s character.
23. The second offence occurred within 12 months of the first. The modus operandi was the same. Between the confiscation of his equipment on the first occasion and his apprehension on the second occasion, the applicant had acquired further hydroponics equipment and the partitioned room in the rear shed was set up for a further crop. There were three plants on this occasion, and the marihuana was growing once more in the third bedroom of what has been described by the applicant as a small house. The teenage son was once more forced to share a room with his much younger sister to enable the crop to occupy a third bedroom.
24. The Tribunal found it quite alarming that the applicant would show such little regard for his children’s welfare that he would force them to share a bedroom while he grew an illegal substance in their bedroom, particularly as it seems that the rear shed was set up for further production, but was not being used at the time.
25. The applicant pleaded guilty once more and his counsel persuaded the Magistrate that a conviction may affect his application for citizenship and was fined for the offence, but a conviction was not recorded.
26. In his evidence to the Tribunal the applicant claimed that he had developed a liking for marihuana between the first and second offences and that he was growing this second set of plants for his own consumption.
27. The Tribunal is asked to accept that because the Magistrates Court has not recorded a conviction, that the offences should be treated as being “minor” or “insignificant”. The Tribunal does not accept that is the case. The Tribunal is entitled to consider all the facts, many of which were not available to either of the sentencing Magistrates. The Magistrates were read an agreed version of facts by the police. The applicant did not give evidence in the Magistrates Court, and therefore the facts could not be explored by the Magistrate. Because of its investigatory role, the Tribunal has been put in a better position to assess the seriousness or otherwise of the applicant’s behaviour in the context of the offences with which he was charged. He has given evidence under oath to this Tribunal, and documents with respect to his arrest and questioning by the police have been available to the Tribunal. His wife has given evidence to this Tribunal.
28. The Tribunal was referred to a number of authorities, and in particular Minister for Immigration and Ethnic Affairs v Gungor (1981) 4 ALD 575. The applicant’s representative asserted that that case stood for the proposition that because the applicant received no conviction for either offence the Tribunal was bound to treat the criminal offences in this case as being trivial. The Tribunal does not accept that Gungor stands for that proposition. The facts of that particular case were quite different and involved a person who had been convicted after a jury trial of an offence. A Tribunal after the event went on to make a finding in the light of further evidence that the jury should not have reached the conclusion that it did. The Appeal Court found that the Tribunal could not ignore the conviction or set it aside. The case of Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649 was referred to with approval and the joint judgement of Fisher J and Lockhart J where the following comment was made:
“The conviction is the genesis of the Minister’s power to deport. There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However, such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant’s criminal conduct and not for the purpose of assessing the proprietary of the conviction of the fairness of the trial. Whether these circumstances and matters are susceptible of examination and the extent of that inquiry will vary from case to case. The matters which the Tribunal is called upon to determine are wider than and different from the questions which a trial Judge and jury must determine …”
Sheppard J in his majority judgement summed up the position as follows.
“… Tribunal remains entitled, indeed bound, to examine for itself what was involved in the entirety of the conduct of the applicant before it. This examination will include the receiving of evidence to put the Tribunal in a position to weigh and to make its own assessment of the seriousness of the conduct which has led to the conviction. …”
29. The authorities support the proposition that the Tribunal can examine the facts of the case and make its own assessment as to the gravity of the applicant’s conduct.
30. The Tribunal was also referred to a number of cases, including the cases of Re Bilouni and Minister for Immigration and Multicultural Affairs [2001] AATA 233 and ReTwilley and Minister for Immigration, Multicultural and Indigenous Affairs [2004] AATA 1213. Those cases demonstrate that the assessment of good character is to be individually determined in each case on the facts of each case. Factors such as the nature of an offence, the availability of character witnesses who are aware of the applicant’s past history, the time that has elapsed since the last offence and the attitude of the applicant for citizenship are all matters for the decision maker to consider.
31. In this case the Tribunal is satisfied that the criminal offences committed by the applicant were serious, and at the upper end of offences under that particular provision of the State Act. The size of the fines imposed in each case support that conclusion. These offences occurred within a short space of time and the applicant’s actions in acquiring further equipment and setting up a new hydroponic system between the first and second offence make his behaviour particularly reprehensible. He showed no regard at all for the law in this State at the time.
32. The second offence occurred three years ago, and the applicant has not offended since. Does this of itself determine that the applicant is now of good character within the standards expected within our society for the purposes of a grant of citizenship? Does lack of offending alone, determine that a person is now of good character? The Tribunal considers that given the relatively short period of time since the applicant’s offence, lack of offending alone does not necessarily bring the applicant to the standard of good character required for the purposes of citizenship.
33. The applicant’s demeanour and his attitude towards giving evidence and taking responsibility for his actions were significant to the Tribunal in making its determination. He came to the Tribunal with a new and entirely implausible story with respect to the first offence. The Tribunal does not accept his evidence that he only pleaded guilty to the offence to protect a teenage relative and that he believed that he was merely growing an unusual sort of tobacco. It is clear from the other evidence as referred to that the applicant and his wife were well aware on each occasion of the wrongful and serious nature of the offences involved. The story told to the police and the Magistrate at the time was at odds with the story now presented to the Tribunal.
34. The Tribunal also found it disturbing that the applicant would expose his children to his criminal activity, and affect the quality of his children’s environment by prioritising his criminal activity over their own comfort and safety. He appeared to show little insight into the possible deleterious effect his project may have had on his teenage son in particular, and was more concerned to tell the Tribunal about his own personal distress at not being able to yet achieve citizenship.
35. This is not the standard of behaviour that we expect of our citizens. The applicant is able to reside in this country as a result of holding a protection visa, however he is seeking an additional privilege namely the privilege of citizenship. The Tribunal does not accept that he currently satisfies the requirement of being of “good character”. His lack of regard for the truth in giving his evidence to the Tribunal, his inability to still really accept that anything he did was particularly wrong, the lack of any significant supporting character evidence, the serious nature of the offences and the fact that there were two offences in rapid succession, all lead the Tribunal to conclude that he does not currently satisfy the criteria of good character as set out in the Act.
36.In the circumstances the Tribunal affirms the decision under review.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell
Signed: ....................J Coulthard................................
AssociateDate of Hearing 10 May 2005
Date of Decision 17 October 2005
Counsel for the Applicant Mr J Miller
Solicitor for the Applicant Jonathan Miller Barristers & Associates
Counsel for the Respondent Mr R Prince
Solicitor for the Respondent AGS
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