Marin Kola and Minister for Immigration and Border Protection
[2014] AATA 349
[2014] AATA 349
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/6831
Re
Marin Kola
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal RM Creyke, Senior Member
Date 3 June 2014 Place Canberra The decision under review is affirmed.
.....................[sgd]..............................
RM Creyke, Senior Member
Catchwords
CITIZENSHIP – eligibility – whether applicant is of good character – previous criminal convictions - decision affirmed.
Legislation
Australian Citizenship Act 2007 (Cth) sections 21, 22 and 24(1A).
Cases
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Re CI and Minister for Immigration, Multicultural Affairs and Citizenship [2013] AATA 519
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Secondary Materials
Australian Citizenship Instructions, Department of Immigration and Citizenship, National Office (23 November 2013)
REASONS FOR DECISION
RM Creyke, Senior Member
Mr Marin Kola, born 1977, has sought review by the Tribunal of a decision of the Minister for Immigration and Border Protection (Minister) on 19 December 2013 refusing his application for Australian citizenship by conferral.
The matter was heard in Canberra on 2 and 8 May 2014. The Tribunal is satisfied that it has jurisdiction in this matter.
Background
Mr Kola was born in Albania. On 27 June 1996 he was granted a subclass TN 686 Tourist (long stay) visa to visit Australia for eight months. He arrived in Australia on 8 August 1996 using his Albanian passport. Mr Kola said in evidence that he believed the passport would have expired in 2006.
Mr Kola has a brother in Adelaide and on his arrival in 1996, Mr Kola socialised with his brother’s friends. Among them was a woman whom he married within a couple of months of his arrival. She was an Australian citizen. He applied for a spousal visa on 22 October 1996. The spouse visa was refused. On 17 July 1998, following review of the refusal decision by the Migration Review Tribunal, Mr Kola was granted a subclass TK 820, temporary spouse visa. The visa expired on 30 December 1998.
Mr Kola next applied for an 801 permanent spouse visa. However, in the meantime, the relationship with his wife had broken down and the couple separated in 2000. The application was refused, a decision affirmed by the Migration Review Tribunal on 6 July 2001. Mr Kola said in evidence that he understood his wife had applied for a divorce after their separation. However, in 2008 he discovered this had not happened, so he lodged the divorce papers and was then granted a divorce. Mr Kola is planning to marry an Albanian woman he met while he was living in Albania between 2005 and 2008.
On 1 August 2001, Mr Kola applied for a protection visa because he feared persecution in Albania. His family in Albania had become embroiled in a blood feud with another Albanian family which commenced in about 1999. Mr Kola said if he returned to Albania, as a male member of his family, he would be in fear of his life. In support of his claim Mr Kola said all three of his brothers have now left Albania. Two are in countries in Europe and one is in Adelaide. After his father died his mother moved to Adelaide. This was sometime after 2008. Mr Kola’s application for a protection visa was refused on 26 April 2002, a decision upheld by the Refugee Review Tribunal on 28 November 2003.
In 2004, Mr Kola applied again for a protection visa. The application was rejected by the Refugee Review Tribunal on 28 April 2004. Mr Kola commenced proceedings in the Federal Court but withdrew his application on 29 October 2004. Mr Kola remained in Australia on various bridging visas during this period.
On 30 November 2004, Mr Kola was detained as an unlawful non-citizen in Baxter Detention Centre. He was released on 8 November 2005 provided he left the country. On 26 November 2005 Mr Kola voluntarily left Australia for Albania. On 7 January 2005, Mr Kola applied, unsuccessfully, for Ministerial Intervention under section 417 of the Migration Act 1958 (Cth).
Mr Kola was overseas from 26 November 2005 until 26 May 2008, when he returned to Australia.
On 13 June 2008 Mr Kola again applied for a protection visa on the grounds that he feared persecution in Albania because he and his family were embroiled in a blood feud. On 9 December 2008 Mr Kola was granted an 866 protection visa.
On 26 June 2012, Mr Kola applied to become an Australian citizen by conferral. On 16 December 2013, his application was refused. On 23 December 2013, Mr Kola applied to the Tribunal for review of the decision.
Citizenship application
Mr Kola’s application for Australian citizenship was refused on the ground that he did not meet the good character requirements at the time of the decision. The grounds on which he failed to satisfy that citizenship criterion follow.
Mr Kola had a number of convictions. On 4 March 2002 he was charged with driving at a dangerous speed while in South Australia. He was convicted, fined $300 and was disqualified from driving for six months. Mr Kola explained that he was driving through Mt Pleasant, a small country town in the Adelaide Hills. He said he was not aware that the speed limit had changed. He was charged with doing 110 km in a 60 km zone.
On 10 February 2005, Mr Kola was charged with offences relating to a passport. In 2003, Mr Kola had applied for an Australian passport in the name of a friend, an Australian citizen. Mr Kola said he had borrowed documents from an Australian citizen friend in order to obtain a passport to travel to Albania. The passport contained a photograph of Mr Kola. Mr Kola said that the reason he needed to visit Albania was because his father was seriously ill. Mr Kola’s father has subsequently died. Mr Kola spent about three weeks in Albania in August/September 2003. He said that at that time he did not have the Albanian passport he had used when he first arrived in Australia because he had earlier provided that passport to the immigration department. When he enquired about it in 2003 he was told it could not be found.
Mr Kola said on his return to Australia in 2003 he destroyed the false passport. He said he could not use an Albanian passport since ‘even if I had an Albanian passport I wouldn’t be able to get back into Australia because I wouldn’t have a right’. Mr Kola denied, however, that this was because at the time he was applying for a protection visa in Australia on the ground that he was facing persecution in Albania and he would be less likely to be granted that visa if Australian authorities knew he had been able to travel to Albania, stay there, and then leave without difficulty. He also said he had been young and foolish when he falsified the passport and he would not offend in that way again. Mr Kola was then around 25 years of age.
Mr Kola was charged with using a false passport to travel outside Australia between 22 August 2003 and 21 September 2003. On 10 February 2005 Mr Kola was convicted by a magistrates court under the Passports Act 1938 (Cth) and the Migration Act 1958 (Cth) for the offences of use of a false passport, of failure to produce a passport when ordered, and of providing false information on a document on entry to Australia. He was convicted and sentenced to three months’ imprisonment for two of the charges, one month for the third charge, to be served concurrently, but was released on a recognisance to be of good behaviour for twelve months. He was also convicted of making a false statement to obtain a passport and was fined $600.
The Minister’s delegate said that ‘At an interview in this office … you stated [the Australian citizen] had done you a favour by allowing you to use his passport to travel to Albania; however, you told the courts that you had stolen it from [the Australian citizen]’. At the hearing Mr Kola explained that the reason he told the court he had stolen the documents was to protect his friend from any trouble. Mr Kola admitted he knew at the time it was unlawful to use false documents to obtain a passport.
On 26 November 2004 Mr Kola was detained as an unlawful non-citizen in Baxter Detention Centre. He remained there for some eleven and a half months until 8 November 2005. Mr Kola said he had no idea why he was in detention for so long. While in detention, after about four months, Mr Kola became ill. He was progressively unable to swallow. Eventually, he said he was so ill, he decided he would voluntarily return to Albania. He was released from detention on 8 November 2005 on the understanding that he would seek medical treatment in the next few weeks prior to his departure for Albania.
On 16 November 2005 Mr Kola consulted Dr Joe Alvaro, a doctor in Adelaide, complaining of a six month history of difficulties with swallowing and of his throat feeling paralysed. He had already had an endoscopy and was prescribed medication which, according to Dr Alvaro, did not improve his symptoms. Mr Kola then departed for Albania on 26 November 2005. While in Albania, Mr Kola was diagnosed with myasthenia gravis, an autoimmune disease which, in Mr Kola, affected his ability to swallow and to speak.
From 2005 to 2008 Mr Kola was living with his mother in Albania. He began seeking a false passport not long after his arrival. He was put in touch with people who, on payment of $US10,000 provided him with a passport issued to a United States citizen, a Mr Tom Gjergji, with a visa to enter Australia. On 26 May 2008, Mr Kola used that passport to travel to and enter Australia. He destroyed the passport soon after entering the country.
Within a week of his arrival, Mr Kola saw Ms Le, a migration agent. By then he was quite ill and Ms Le advised him promptly to seek medical attention. He was admitted to the emergency department at Calvary Hospital, Canberra and then transferred to Canberra Hospital where he was in intensive care for three to four days.
On 3 June 2008, Ms Le contacted the immigration department on behalf of Mr Kola, informed them of his arrival, that he was an unlawful non-citizen, and had arrived on a false passport. On 4 June 2008 Ms Le informed the department that the passport had been in the name of a Mr Tom Gjergji.
On 13 July 2008 Mr Kola applied for a protection visa. Initially the application was refused, but on 5 December 2008, on review, the Refugee Review Tribunal decided that Mr Kola was a refugee and was entitled to a protection visa. On 9 December 2008, Mr Kola was granted a protection visa 866 of indefinite duration. Subsequently, Mr Kola, for health reasons, has been granted disability support pension and he has a pensioner concession card. Mr Kola has not worked since he has been in Australia.
On 18 June 2009, Mr Kola was convicted by a magistrates court of dishonestly taking property without the owner’s consent. His evidence was that he inadvertently walked out of a Bunnings store in Adelaide with a pair of scissors in his pocket without paying for it. He was convicted and fined $180.00.
On 26 July 2011 Mr Kola was granted an Australian travel document, to expire on 26 July 2013. On 7 April 2014, Mr Kola was granted a five year resident return (subclass 155) visa to expire on 7 April 2019. Both documents authorise unlimited travel. On 26 June 2012, Mr Kola applied for Australian citizenship by conferral.
Mr Kola gave evidence that he used his 2011 travel document to travel to Kosovo, a country adjacent to Albania, on several occasions to see his Albanian fiancée. She has applied to obtain a visa to enter Australia, and provided the visa is granted, Mr Kola says he plans for the couple to be married after her arrival in Australia.
Evidence was provided by the Albanian government that Mr Kola was not convicted of any offences while he was in Albania between 2005 and 2008.
Legislation
The legislation is the Australian Citizenship Act 2007 (Cth) (Act). Also relevant are the Australian Citizenship Instructions, a policy document issued by the immigration department to guide decision-makers. Chapter 10 deals with character assessments.
Issues
The sole issue is whether the decision to refuse Mr Kola’s application for Australian citizenship by conferral was the correct or preferable decision.
Consideration
The relevant provisions to be met by an applicant for Australian citizenship by conferral are set out in section 21(2) – (8), and the general residence requirements in s 22, of the Act. An applicant must satisfy all the requirements.[1] The relevant criterion which the delegate found was not met by Mr Kola was section 21(2)(h), ‘that a person must be of good character at the time of decision’. All the eligibility criteria must be met before the Tribunal can decide that the person can become an Australian citizen.[2]
[1] Australian Citizenship Act 2007 (Cth) section 24(1A).
[2] Australian Citizenship Act 2007 (Cth) section 24(1A).
‘Good character’ is not defined in the Act. Consistent with principles of statutory interpretation, the expression is given its ordinary English meaning.[3] The dictionary meanings of ‘character’ emphasise that the word in its context may refer to ‘enduring moral qualities’[4] or to reputation.[5] Both meanings are relevant, although the former may be able to be tested more objectively than the latter.[6] If it is shown that the person has committed crimes, the length of time since the criminal activities, the nature of the crime, and whether the person has reformed, and how others regard the person are also relevant.[7] All the conduct under scrutiny is to be examined in order to see what light it may throw on whether the person is of good character.
[3] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422.
[4] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432 per Lee J;approved by the Full Court in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187; and Re CI and Minister for Immigration, Multicultural Affairs and Citizenship [2013] AATA 519 at [25].
[5] Ibid.
[6] Ibid at 431-432 per Lee J, disagreeing with the majority on whether good character should be assessed by the standing, fame or repute of the person in the community, on the ground that these perceptions were subjective, not objective.
[7] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 425.
At the hearing, Ms Le submitted that Mr Kola was a person of good character. She referred to his pleading guilty to the passport offences and his other charges; his acknowledgement to the immigration department on two occasions of his use of false passports; his lying in 2005 to the magistrates court about the role of his friend in the passport fraud to avoid any problems for the friend; his taking steps as a good son to get to Albania in 2003, despite the danger to himself, to see his ill father; and the fact that fourteen Australian citizens ‘of sound character and good standing in the Australian community’, had been prepared to provide references, three of whom gave oral evidence, including the barrister who had represented him in his 2003 and 2005 matters. This was the first ever character reference given by this barrister in thirty-two years of practice.
The representative for the immigration department submitted that the matters which counted against Mr Kola’s being a person of good character were the seriousness of his offences, namely, fraud, identity fraud, and breach of migration law; his two minor offences, one of which involved dishonestly taking without consent; the premeditated nature of his passport offences and, on the second occasion, the fact that he had already been convicted of a similar offence in 2005 and knew that to falsify a passport was contrary to Australian law. The representative submitted that this showed a pattern of wrongdoing which denied good character.
Helpful guidance in making decisions about good character is provided by the Australian Citizenship Instructions (ACIs). The ACIs are policy documents but these can be taken into account by the Tribunal unless there are cogent reasons not to do so.[8] Chapter 10 of the ACIs states:
[8] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
It is the responsibility of the applicant to show that they are of good character. If a decision-maker is not satisfied that an applicant is of good character at the time the application is to be decided, the application must be refused. …
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. … An applicant’s behaviour does not have to be faultless, but the aggregate of their qualities must be weighed against ordinary community standards of behaviour.
Factors in the ACIs to be considered where a person has a criminal record, include:
· whether the offence was a serious one. The listed offences include ‘Fraud (including identity fraud); and Breaches of immigration law; or
· whether the offence was a minor offence to include, as relevant: ‘Shoplifting’; Traffic offences which have been included in a criminal record; and Offences which do not lead to a conviction or a sentence.
· Was the offence pre-meditated?
· Ongoing obligations in relation to the sentence received, such as a good behaviour bond following conviction
· Sentencing remarks;
· How many offences have been committed? Was it a one-off or is there a pattern of criminal behaviour since ‘a pattern of behaviour, even of repeated minor offences, shows a disregard for the law and indicates that the applicant may not “uphold and obey” the law if citizenship is conferred on them
Under ‘general conduct’ factor the ACIs list as significant, as relevant, include:
·How has the applicant interacted with the Australian Government or State/Territory governments? Have they been honest or have they committed fraud, including identity fraud, even if there has not been a criminal conviction.
The ACIs list mitigating factors, as relevant, to include:
·[T]he length of time between the date of offence (if known) and application for Australian citizenship, or between conviction and application?
·Has the applicant accepted responsibility and shown remorse for their conduct?
·How has the applicant behaved … upon completion of any obligations to a court such as a good behaviour bond?
·What was the applicant’s age at the time the offence was committed?
·Were there any extenuating circumstances relating to the offence?
·Is there evidence of … stable family life and/or community involvement? These may be indicators of good character.
Mr Kola committed two serious offences each involving fraud and breaches of immigration law, one in 2003; the second in 2008. He twice obtained a false passport: to leave and re-enter Australia on the first occasion; and to enter Australia on the second occasion.
The Tribunal notes that on the first occasion the court considered the offences charged (three fraud offences and one migration offence) were sufficiently serious to warrant a custodial sentence, but in view of Mr Kola’s plea of guilty, the absence of any prior history of relevant offences, and the circumstances of the offence, he did not impose a custodial sentence. Mr Kola was required to enter into a good behaviour bond and did not breach the bond during the 12 months’ period imposed by the court.
Mr Kola has submitted that the context in which these offences occurred must be taken into account. In the first instance he argues that in 2003, with the advent of the blood feud involving his family and for which he has since been granted a protection visa, he put his life at risk in visiting Albania, that he only stayed three weeks and that his purpose in going was to see his seriously ill father. In his view these actions were not those of a person of bad character.
Mr Kola was unable to travel on his Albanian passport, still current in 2003, as the immigration department had mislaid the passport. The Tribunal notes that Mr Kola apparently did not seek another Albanian passport at that time. Mr Kola said his reason for not doing so was ‘because I wouldn’t be able to get back into Australia because I wouldn’t have a right’. This appears to be a reference to the fact that he would have no visa to come to Australia on his Albanian passport. The Tribunal infers that there was a degree of urgency about Mr Kola’s need to get to Albania to see his ill father, so he may not have had time to obtain a visa, even if he still had his Albanian passport.
The Tribunal accepts that Mr Kola had a genuine concern for his personal safety on this visit and that concern was reasonable. He denied that he had acquired a false passport so as not to jeopardise his application for a protection visa. The offences were over ten years ago, Mr Kola was then only 25 years of age, and, on its own the circumstances surrounding these convictions were insufficient to establish that Mr Kola was a person of bad character. Even when his speeding offence is taken into consideration, the Tribunal is satisfied that at this point, no pattern of bad character had emerged.
However, Mr Kola committed a similar offence on a second occasion when he entered Australia on a false passport in 2008. Although no conviction is recorded it is not clear whether Mr Kola knew that persons entering Australia on a false passport were generally not prosecuted. He did know that his means of entry to, and presence in, Australia when he arrived in 2008 was unauthorised. He was sufficiently concerned about these issues, despite being seriously ill, to travel from Adelaide to see his migration agent in Canberra to see whether she could help him regularise his status. So he was aware that under Australian law his actions were unlawful.
The Tribunal further finds that preceding his arrival in Australia in 2008, Mr Kola was in Albania for three years and was able to remain there despite the blood feud. Mr Kola’s evidence was that he was very sick when he was in Albania and that he feared persecution. Significantly, Mr Kola did not, during those three years, seek a lawful means of re-entering Australia. He agreed he could have got an Albanian passport while he was in Albania. He had no convictions for offences during his visit. The Tribunal accepts that at that time and given the then status of diplomatic relations between Australia and Albania, he was not able to obtain a visa to come to Australia from Albania. However, Mr Kola gave evidence that he understood that an Australian visa could have been obtained by visiting an Australian mission in another country, as he had obtained his first Australian visa in 1996 from the embassy in Greece and his fiance was currently organising her visa through the embassy in Belgrade, Yugoslavia.
Mr Kola did not seek to obtain a visa through these means. The Tribunal infers that, at the time he had recently been deported, so he may have believed he would not have been successful had he done so. Whatever the reason, he did not seek to explore that lawful option. Instead, not long after he arrived in Albania, he deliberately set about trying to obtain another false passport. Mr Kola said that the people from whom he obtained the passport had said they would harm his mother if he did not destroy the passport on arrival. Nonetheless, his action was pre-meditated and was undertaken knowing that the action was unlawful. Mr Kola’s actions in destroying the false passport immediately on arrival in Australia were indicative of that knowledge.
This second offence was only committed some five years ago but by then Mr Kola was 28 years of age. This was not the impulsive actions of a relatively young adult, nor, unlike his actions on the first occasion, taken under any degree of urgency. Moreover, Mr Kola said in evidence, that faced with similar circumstances he would have done the same thing today. That suggests Mr Kola has not appreciated the seriousness of the passport and migration offences, nor has he reformed.
The Tribunal notes that his theft of a pair of scissors is a minor offence and gives it little weight. However, his actions in obtaining a second false passport were pre-meditated, and were taken fully knowing it to be unlawful. Mr Kola swore in a statutory declaration dated 12 March 2014 that ‘I have regretted my offences/crimes ever since and can only say that I can assure the Minister, the DIBP [Department of Immigration and Border Protection] and the Tribunal that I will never commit such an offence again’. However, when Mr Kola was asked at the hearing whether, given the same circumstances as he faced in 2008 he would do the same again, he said he would. The inconsistency between his sworn declaration, and his testimony to the Tribunal cast doubt on Mr Kola’s willingness to use lawful, as compared to unlawful, means to achieve his ends. In turn it suggests he does not yet accept the responsibility of a potential Australian citizen to comply with Australian law.
The Tribunal accepts that Mr Kola’s serious offences are solely in the areas of immigration law, that his other offences are minor, that he did not offend while in Albania, and that he has no pattern of breach of the criminal law. It also accepts that his general conduct has been endorsed positively by a number of Australian residents. However, there were some inconsistencies in the good character references which reduce their weight as evidence. For example, some claimed that he was hardworking when the evidence is that he has not worked in Australia. It is also apparent that not all were aware of the full picture of Mr Kola’s offences.
Mr Kola has a protection visa granted by Australia. He is able to remain here indefinitely. He is on financial support. He has a travel document which gives him unlimited rights to travel to and from Australia. His current document is in force until 2019.
Nonetheless, at this time, he has not shown for a sufficient length of time that he would not, in other circumstances, lie to officials to achieve his ends. Consequently, the Tribunal is not satisfied that Mr Kola has yet demonstrated he is sufficiently of good character to be a suitable candidate for Australian citizenship. However, if he maintains an unblemished record of interaction with government and compliance with the law over the next few years, there is no reason why he should not again seek Australian citizenship at that time. The decision under review is affirmed.
I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of RM Creyke, Senior Member. ....................[sgd]....................................................
Associate
3 May 2014
Dates of hearing 2 & 8 May 2014 Advocate for the Applicant Marion Le, Marion Le Consultancy Advocate for the Respondent Tigiilagi Eteuati Solicitors for the Respondent Clayton Utz
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