Molla and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship)
[2023] AATA 170
•14 February 2023
Molla and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship) [2023] AATA 170 (14 February 2023)
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: 14 February 2023
Date of Written Reasons: 16 February 2023
Place:Melbourne
The Tribunal affirms the decision under review.
............................[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) – Applicant continues to face criminal charges – reviewable decision affirmed
Legislation
Australian Citizenship Act 2007 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
CASES
Drake and Minister for Immigration and Ethnic Affairs, Re (No 2) (1979) 2 ALD 634
Hneidi and Ors v Minister for Immigration and Citizenship [2010] FCAFC 20
Lesi v Administrative Appeals Tribunal [2015] FCA 1186
Minister for Home Affairs v G (2019) 164 ALD 103
Molla and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2700Negri v Secretary, Department of Social Services [2016] FCA 879
SECONDARY MATERIALS
Department of Immigration and Border Protection, Australian Citizenship Policy Statement (27 November 2020)
Refugee, Citizenship and Multicultural Programs Division, Department of Home Affairs, Revised Citizenship Procedural Instructions (26 February 2021)
Australian Citizenship Procedural Instruction 33 – Prohibitions on approval
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
16 February 2023
INTRODUCTION
The Applicant 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 14 February 2023 by telephone. The Applicant was self-represented. The Respondent was represented by Ms Georgia Wilson of Minter Ellison Lawyers. At the conclusion of the hearing the Tribunal affirmed the decision under review and gave oral reasons. The Applicant requested written reasons for decision on the same day. These now follow in accordance with the requirements of section 43(2B) of the Administrative Appeals Tribunal Act 1978 (Cth). The Tribunal respectfully adopts the reasoning of Bromberg J in Negri v Secretary, Department of Social Services [2016] FCA 879, which considered the extent to which the Tribunal can elaborate upon its oral reasons. His Honour stated at [27]:
‘...As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).’
BACKGROUND
The Applicant was born in Albania[1] and is currently 36 years of age.[2] His parents and several siblings 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. The Applicant has since been issued with the following visas:[5]
(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, which he continues to hold.
[1] Exhibit R1, 35.
[2] Ibid 16.
[3] Ibid 24-26.
[4] Ibid 17; 34.
[5] Ibid 86.
On 29 July 2013 the Applicant married an Albanian citizen while living in Australia. His wife is a dependant on his Employer Nomination Scheme (subclass 186) Visa and the couple have two children.[6] The Applicant has travelled internationally on multiple occasions since arriving in Australia, including to Albania, Turkey, and the United Kingdom.[7]
[6] Ibid 118.
[7] Ibid 29.
The Applicant submitted an initial citizenship application on 21 December 2016,[8] which was deemed invalid. He re-applied on 3 February 2017, but this application was rejected by the Respondent on 20 March 2020 because of concerns about the Applicant’s identity.[9] The Applicant appealed the refusal decision, and, on 4 August 2021, Member K. Parker of this Tribunal set aside the Respondent’s decision having been ‘satisfied as to the identity of Mr Molla for the purposes of s 24(3) of the Act’.[10]
[8] Ibid 16.
[9] Ibid 84-91.
[10] Molla and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2700.
In 2021 Australian Federal Police executed search warrants at several properties. The Applicant was later arrested, and a Criminal History Check discloses he was subsequently charged with four Commonwealth offences as follows:[11]
(a)One count of directing the activities of a criminal organisation;
(b)One count of cultivating a marketable quantity of a controlled drug;
(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.
[11] Exhibit R1, 113-114.
These pending charges invoked the prohibition against granting citizenship at s 24(6)(a) of the Act and were the basis on which the Respondent refused the Applicant’s citizenship application. It is this refusal decision the Applicant challenges in the Tribunal.
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) and s 52(1)(b) of the Act underlie the Tribunal’s jurisdiction to review decisions under s 24 of the Act.
Australian Citizenship [Policy Statement]
The Australian Citizenship Policy Statement (issued on 27 November 2020) and the Revised Citizenship Procedural Instructions (reissued on 26 February 2021) provide guidance for decision-makers exercising power under the Act. Australian Citizenship Procedural Instruction 33 – Prohibitions on approval relevantly states that decision-makers ‘must not approve’ an application for Australian citizenship if any of the requirements at ss 24(6)(a)-(h) of the Act are enlivened.[12] [emphasis in original]
[12] CPI-33, s 7.
The Tribunal can be assisted by policy in discharging its review functions.[13] The Full Court of the Australian Federal Court has held that the discretion to approve or refuse citizenship is unfettered, and ‘not inimical to the adoption of executive policy…to guide the exercise of discretion.’[14] Their Honours reasoned that the Act envisaged the existence of executive policy, the adoption of which promotes consistency and rationality in decision-making.[15] Noting that each case before the Tribunal is considered anew and on its merits, Government policy is ordinarily considered and applied unless there is a cogent reason not to do so.[16] No submissions were made that the Tribunal should disregard the available policy and the Tribunal has applied it.
[13] See, for example, Hneidi and Ors v Minister for Immigration and Citizenship [2010] FCAFC 20 at [41].
[14] Minister for Home Affairs v G (2019) 164 ALD 103, 120 [64].
[15] Ibid, [65]; [70].
[16] Drake and Minister for Immigration and Ethnic Affairs, Re (No 2) (1979) 2 ALD 634.
APPLICANT’s EVIDENCE
The Applicant confirmed in oral evidence he has been charged with the above offences, following which he attended a mention hearing on 25 November 2022 and a further hearing on 8 February 2023. His committal hearing is scheduled for early April 2023. The Applicant made submissions about what he considers are deficiencies in the Respondent’s handling of his citizenship application. Key aspects of his oral evidence are summarised as follows:
(a)The Applicant believes the Respondent should not have refused his citizenship application until the charges against him are resolved. He said doing so is procedurally unfair because his guilt or innocence is yet to be determined. The Applicant’s submissions were to the effect that denial of his citizenship application constitutes a defacto finding of guilt regarding charges yet to be answered.
(b)The Applicant asked the Tribunal not to decide his citizenship application until his criminal charges are heard, stating inter alia:
‘I don’t want to make a decision today because last time by the Tribunal, when we go through the Tribunal and I won everything, then the Immigration take about 6-7 months, uhh 3 months to make a decision, and without me asking anything, in November they write to me saying: “Mr Molla we’re going to put your application on hold because you might get charged” so I don’t know why they didn’t make a decision then.
…what about if I’m not found guilty, it’s…stressing me out…they always wanted to refuse my citizenship, and I really don’t know why. I understand…the charges apply to the law, but they always been treating me like I was a terrorist. So now, as soon as the charges, yes he Mr Molla is guilty, we going to punish him, we going to dismiss his case…What’s the hurry, why so desperate to refuse me, why?’
TRIBUNAL CONSIDERATION
The Tribunal has no discretion under the Act to waive prohibitions on granting citizenship, including if an applicant has pending criminal proceedings. The Applicant’s claim that refusal of his citizenship application constitutes a pre-emptive finding of guilt for his criminal matters is not accepted. It is simply the existence of these charges that enlivens the prohibition against granting citizenship and the administrative decision he now challenges in the Tribunal. His innocence or guilt will be determined by a court with criminal jurisdiction.
In response to the Applicant’s request that the Tribunal delay its decision until his criminal charges are heard, the Tribunal explained on several occasions during the hearing this is impermissible. The Applicant does not accept this. The Tribunal cited Lesi v Administrative Appeals Tribunal [2015] FCA 1186 during the hearing, in which 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:
‘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.’[17] [emphasis added]
[17] Lesi at [23]-[24].
The Tribunal’s adjournment power cannot be used to circumvent provisions of the Act by deferring a decision until the outcome of criminal charges is known at an indeterminate time in the future. Section 24(6) of the Act of the Act precludes approval of citizenship ‘at a time’ when there are pending proceedings for an offence against an Australia law. It does not provide for a ‘wait and see’ approach on the speculative premise that a prohibition under the Act might be overcome by the passage of time or a court eventually ruling in an applicant’s favour. Delaying a decision in this way also conflicts with the Tribunal’s objective to provide a mechanism of review that is amongst other things, ‘quick’. The Tribunal declines the Applicant’s invitation to delay a decision until his criminal charges are determined.
In terms of the Applicant’s complaints about the Respondent’s handling of his application, the Tribunal conveyed during the hearing he has other avenues to pursue this if he wishes, including through the Ombudsman, but should seek his own advice. The Tribunal also notes the Applicant is not precluded from lodging a new citizenship application once his criminal charges are decided, which would be assessed on the prevailing circumstances at that time.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 19 (nineteen) paragraphs are a true copy of the written reasons for the decision herein of Senior Member A. Nikolic AM CSC
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Associate
Dated: 16 February 2023
Date of hearing: 14 February 2023 Applicant, self-represented: By telephone Advocate for the Respondent: Ms Georgia Wilson Solicitors for the Respondent: Minter Ellison
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