Molla and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) - [2024] AATA 311

Molla and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 311 (29 February 2024)
Division:GENERAL DIVISION
File Number: 2022/9503
Re: Avdi Molla
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date of Decision: 29 February 2024
Place:Melbourne

The Tribunal affirms the reviewable decision.
..............................[sgd]..........................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
CITIZENSHIP – decision to refuse citizenship application under s 24(6)(a) of the Australian Citizenship Act 2007 (Cth) – pending criminal charges since August 2022 – contested trial scheduled for October 2024 – prohibition against granting citizenship enlivened – reviewable decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
CASES
BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865
Drake and Minister for Immigration and Ethnic Affairs, Re (No 2) (1979) 2 ALD 634
Lesi v Administrative Appeals Tribunal [2015] FCA 1186
Molla and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2700
Molla and Minister for Immigration, Citizenship, and Multicultural Affairs [2023] AATA 170
SECONDARY MATERIALS
Department of Immigration and Border Protection, Australian Citizenship Policy Statement (27 November 2020)
Australian Citizenship Procedural Instruction 33 – Prohibitions on approval, Refugee, Citizenship and Multicultural Programs Division, Department of Home Affairs, Revised Citizenship Procedural Instructions (26 February 2021)
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
29 February 2024
INTRODUCTION

The Applicant, Mr Avdi Molla, seeks review of a decision by the Respondent on 24 October 2022, to refuse his citizenship application under the Australian Citizenship Act 2007 (Cth) (‘the Act’). The refusal decision was based on the prohibition at s 24(6)(a) of the Act, which precludes the grant of citizenship if an applicant has pending charges for an offence under Australian law.
A hearing was held on 27 February 2024 in person at the Tribunal’s Melbourne Registry. Mr Molla was self-represented. The Respondent was represented by Mr Cohen Dietrich, a solicitor from Minter Ellison Lawyers.
For the following reasons the Tribunal affirms the reviewable decision.
BACKGROUND
Mr Molla was born in Albania,[1] and is currently 36 years of age.[2] Some of his family members continue to live in Albania.[3] He became a citizen of the United Kingdom in May 2009,[4] and first travelled to Australia on 13 June 2011 as the holder of a Visitor (subclass 976) Visa.[5] Mr Molla has since been issued with several visas as follows:[6]
(a)Working Holiday Maker (subclass 417) Visa granted on 5 April 2012;
(b)Temporary Work (skilled) (subclass 457) Visa granted on 31 May 2013; and
(c)Employer Nomination Scheme (subclass 186) Visa granted on 13 November 2015.
[1] Exhibit R1, 35.
[2] Ibid 16.
[3] Ibid 24-26.
[4] Ibid 17; 34.
[5] Ibid 10, 86.
[6] Ibid 86.
On 29 July 2013, Mr Molla married an Albanian citizen while living in Australia.[7] His wife was a dependant on his Employer Nomination Scheme (subclass 186) Visa.[8] Mr Molla has travelled overseas on multiple occasions since arriving in Australia, including to Albania, Turkey, Czech Republic, and the United Kingdom.[9] On 16 September 2021, he was granted a permanent Five Year Resident Return (subclass 155) visa.[10]
[7] Ibid 118.
[8] Ibid.
[9] Ibid 29.
[10] Ibid 10.
On 21 December 2016, Mr Molla submitted a citizenship application that was deemed invalid.[11] He re-applied on 3 February 2017, but this application was refused on 20 March 2020 because of concerns about his identity.[12] Mr Molla appealed the refusal decision, and, on 4 August 2021, the Tribunal set it aside because the Member constituted to hear the matter was satisfied of Mr Molla’s identity.[13]
[11] Ibid 38-40.
[12] Ibid 84-91.
[13] Molla and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2700.
In 2021, the Australian Federal Police executed search warrants at several properties. Mr Molla was arrested and later charged with four Commonwealth offences as follows:[14]
(a)One count of directing the activities of a criminal organisation;
(b)One count of cultivating a marketable quantity of a controlled plant;
(c)One count of cultivating a controlled plant; and
(d)One count of dealing with the proceeds of crime, namely money or property worth $100,000 or more.
[14] Exhibit R1, 113-114.
The Respondent refused his citizenship application because of these pending charges pursuant to s 24(6)(a) of the Act.[15]
[15] Ibid 15.
Mr Molla asked the Tribunal to review the refusal decision, but on 14 February 2023 the Tribunal affirmed it.[16]
[16] Molla and Minister for Immigration, Citizenship, and Multicultural Affairs [2023] AATA 170.
Mr Molla sought judicial review in the Federal Court of Australia. On 3 November 2023, Justice Moshinsky quashed the Tribunal’s decision by consent of the parties, which gives rise to the current proceeding. His Honour held that the Tribunal’s decision was affected by jurisdictional error because of a failure to ‘…consider whether the application for review had reasonable prospects of success if the application was to proceed to a final hearing in the ‘ordinary course’. [17]
[17] Federal Court consent orders dated 3 November 2023 (VID191/2023), citing Lesi v Administrative Appeals Tribunal and Anor (2015) 238 FCR 145, [8]-[9] (Besanko J).
Mr Molla received opportunities to lodge materials he intended to rely upon at the re-hearing of his application. On 27 November 2023, the Tribunal made scheduling orders requiring him to lodge any witness statements, other documents he intended to rely upon, and a Statement of Facts, Issues and Contentions by 22 January 2024. He failed to do so. The following then occurred:
(a)On 23 January 2024, the Tribunal emailed Mr Molla asking him to explain his non-compliance with Tribunal directions. He responded by email on 24 January asking for an extension of time to lodge his materials until 31 January 2024, which was granted. He failed to lodge any materials by this date without explanation.
(b)A non-compliance hearing was held on 2 February 2024 during which Mr Molla invoked several personal factors and claimed he misunderstood the time deadline on 31 January 2024 as being midnight rather than noon. He lodged a two-page document later that day as his evidence in this proceeding.[18]
(c)On 19 February 2024, Mr Molla failed to comply with the Tribunal’s direction to provide any reply to the materials lodged by the Respondent or to advise the Tribunal that he did not intend to do so.
[18] Exhibit A1.
RELEVANT LEGISLATION
The Preamble to the Act outlines the nature of citizenship and its accompanying rights and responsibilities as follows:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a)       by pledging loyalty to Australia and its people; and
(b)       by sharing their democratic beliefs; and
(c)       by respecting their rights and liberties; and
(d)       by upholding and obeying the laws of Australia.
A person can apply for Australian citizenship under s 21(1) of the Act.
Section 24 of the Act empowers the Minister, or a delegate of the Minister, to approve or refuse to approve an application for citizenship made under s 21 of the Act. Specified circumstances are set out at ss 24(3) to (7) of the Act, which include the following prohibition at s 24(6)(a):
(6) The Minister must not approve the person becoming an Australian citizen at a time:
(a) when proceedings for an offence against an Australian law (including proceedings by way of appeal or review) are pending in relation to the person; or
…
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), read in conjunction with s 52(1)(b) of the Act, enlivens the Tribunal’s jurisdiction to review decisions made under s 24 of the Act.
Australian Citizenship Policy Statement
The Australian Citizenship Policy Statement (‘Policy’) (issued 27 November 2020) and the Revised Citizenship Procedural Instructions (‘CPIs’) (reissued 26 February 2021) are an expression of government policy that is intended to guide decision-makers who exercise powers and discharge functions under the Act. Although such policy is not binding on the Tribunal, nor fetters the Tribunal’s interpretation of the statute,[19] decision-makers undertaking merits review should generally apply such policy unless it is unlawful or ‘there are cogent reasons to the contrary.’[20] The Tribunal is mindful of the need to consider the exercise of delegated powers based on the specific circumstances of each case.
[19] BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865, [11] (Mortimer CJ).
[20] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 644-645.
Australian Citizenship Procedural Instruction 33 – Prohibitions on approval (‘CPI 33’) relevantly states:
‘A delegate must not approve an application where the applicant is subject to pending proceedings for an offence against an Australian law. This includes appeals and reviews of previous proceedings’ (emphasis in original).
CPI 33 also states:
‘It is possible, that if an applicant seeks merits review at the Administrative Appeals Tribunal (AAT), the circumstances that led to the prohibition on approval under section 24(6) of the Act at the time of decision may no longer exist at the time of review. In these circumstances, the AAT may remit the case to the Department for further consideration’.
APPLICANT’S EVIDENCE
Mr Molla does not dispute the existence of criminal charges against him since August 2022 or that these charges are yet to be finalised. He is contesting the charges and has attended several procedural hearings in the County Court of Victoria, most recently on 16 February 2024.[21] It is uncontentious that the Court has recently scheduled Mr Molla’s criminal trial for a ten-day period commencing on 21 October 2024. He seeks an adjournment of his current citizenship application until his criminal charges are decided, stating:[22]
‘[T]here is no reason why the Tribunal cannot wait for my charges to be finally determined before a decision is made and that the procedures of the criminal system in Australia should reflect the reality between when charges are made and final determined in a Court. Being charged and being convicted are two different things.
DECISION SOUGHT
The Applicant seeks an order adjourning the decision until the charges in the County Court are finally determined.’
(sic in original)
[21] Exhibit R2, Annexure 1.
[22] Exhibit A1, 2.
Mr Molla’s oral testimony is summarised as follows:
(a)He has made several citizenship applications since 2016, claims he has been ‘stuffed around for a long time’, and has not had ‘a chance to explain [him]self’.
(b)Mr Molla claims to know several other people in comparable circumstances to him, where the Respondent purportedly agreed to delay deciding their citizenship application until criminal charges against them were heard. Mr Molla did not lodge any corroborating evidence in this regard.
(c)When asked if there was a particular court case or law he relied upon for the proposition that the Tribunal could indefinitely adjourn the current matter, Mr Molla responded: ‘I don’t know the law.’
(d)Mr Molla submitted that ‘no one knows if the police will succeed’ at trial. He said if the County Court finds him guilty, he will ‘happily leave the country’, but expressed confidence the criminal charges will not be proven.
RESPONDENT’S EVIDENCE
T-documents lodged by the Respondent were taken into evidence as Exhibit R1. The Documents relevant to the status of Mr Molla’s criminal charges, which accompanied the Respondent’s Statement of Facts, Issues, and Contentions, were taken into evidence as Exhibit R2. This included a National Police Criminal History Check dated 31 January 2024, which confirmed that charges against Mr Molla remain pending.[23] Another document from the County Court refers to a ten-day criminal trial scheduled to commence on 21 October 2024.[24] Mr Dietrich submitted that Mr Molla’s citizenship application cannot succeed in these circumstances and the Tribunal has no discretion to waive the prohibition against granting citizenship at s 24(6)(a) of the Act. He said the length of any adjournment is ‘speculative’ given it turns on unknown factors such as possible appeals if the Court finds against Mr Molla. Mr Dietrich said this would also be contrary to the public interest in the finality of administrative decision-making.
[23] Exhibit R2, Annexure 2.
[24] County Court of Victoria’s CourtConnect case information results, lodged 20 February 2024.
TRIBUNAL CONSIDERATION AND FINDINGS
The word pending means ‘remaining undecided, awaiting decision or settlement’.[25] Mr Molla has faced pending charges for approximately 18 months now, which are currently headed for a ten-day contested trial in the County Court commencing on 21 October 2024. At the time of its decision on this application, therefore, the prohibition against granting citizenship at s 24(6)(a) of the Act is enlivened. The Tribunal has no discretion to waive this.
[25] Lesley Brown (ed) The New Shorter Oxford English Dictionary (Clarendon Press, Fourth Edition, 1993), 2146.
Mr Molla’s claim that refusal of his citizenship application constitutes a pre-emptive finding of guilt for his criminal charges is not accepted. It is simply the existence of pending charges that enlivens the prohibition against granting citizenship.
Mr Molla’s key contention is that the Tribunal should adjourn this matter pursuant to s 40(1)(c) of the AAT Act and delay deciding his application until his criminal charges are determined. It is not known with certainty, however, whether Mr Molla’s trial will proceed as currently scheduled, or when the Court will hand down a judgement, or whether Mr Molla will exercise his appeal rights if the charges are proven. Moreover, adjourning his application on the speculative premise that a current prohibition against granting citizenship may be overcome by future events, requires the Tribunal to proceed in other than its ordinary course of hearing such applications. Use of the adjournment power in this way is inappropriate and contrary to the public interest in the finality of administrative decision-making. The Tribunal’s objective is to provide a mechanism of review that is amongst other things ‘economical…and quick’.
The prohibition at s 24(6)(a) of the Act plainly states that citizenship must not be approved ‘at a time’ that an applicant has pending charges. There is no case law or statutory provision the Tribunal is aware of that provides for indefinite adjournment or a wait-and-see approach. If Parliament had intended that citizenship decisions could be indefinitely delayed it would have said so in the Act.
In Lesi v Administrative Appeals Tribunal [2015] FCA 1186, Besanko J considered the Tribunal’s general power to adjourn when a prohibition to citizenship under s 24(6) of the Act is enlivened. His Honour reasoned at [23]-[24]:
‘I think the removal of an express power to defer, albeit subject to a time limit, points in the opposite direction to that advanced by the applicant. In other words, it suggests to me that the Minister does not have power to defer consideration of an application. It is true that there is no time limit on the Minister’s consideration of the matter and the complexities in the administrative steps and the information gathering process will vary from case to case. That means that the time periods within which applications will be determined will vary, but that is quite a different thing from the exercise of an express power to defer. I do not think the Minister has the power to postpone consideration of an application merely on the ground that a bar in paragraph 24(6)(g) will expire in the future.
…It is true that the Tribunal’s general power to adjourn is unconfined in its terms, but it seems to me that there would need to be something in the Act to suggest that the future occurrence of an event identified in s 24(6) of the Act was a relevant consideration in terms of the general power to adjourn. I can find nothing in the Act to that effect.’
(emphasis added)
Mr Molla is not precluded from lodging a new citizenship application once his criminal charges are decided, which would be assessed on his circumstances at that time.
DECISION
The Tribunal affirms the reviewable decision.

I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the written reasons for the decision herein of Senior Member A. Nikolic AM CSC

.......................[sgd].................................................
Associate
Dated: 29 February 2024

Date of hearing: 29 February 2024

Applicant, self-represented: In person

Advocate for the Respondent: Mr Cohen Dietrich

Solicitors for the Respondent: Minter Ellison

Date of hearing:	29 February 2024
Applicant, self-represented:	In person
Advocate for the Respondent:	Mr Cohen Dietrich
Solicitors for the Respondent:	Minter Ellison