Musawi and Minister for Home Affairs (Citizenship)
[2019] AATA 1724
•8 July 2019
Musawi and Minister for Home Affairs (Citizenship) [2019] AATA 1724 (8 July 2019)
Division:GENERAL DIVISION
File Number(s): 2018/5280
Re:Sayed Musawi
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:8 July 2019
Place:Sydney
The decision under review is affirmed.
..............................[sgd]..........................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – Revocation of citizenship by conferral – whether person would be rendered stateless – whether contrary to the public interest for the person to remain a citizen – multiple offences – robbery in company – prior offences – larceny – possession of unauthorised pistol – goods suspected stolen in/on premises – homophobic assault -decision to revoke affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Migration Act1958 (Cth)
The Constitution of the Islamic Republic of Afghanistan
CASES
Ahmadi and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1086
Bijai Prasad and Minister Assisting the Minister of Immigration, Local Government and Ethnic Affairs [1993] AATA 209
D v National Society for the Protection of Children [1977] UKHL 1
Egan v Minister for Immigration and Border Protection [2017] AATA 2705
Galuak and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 2301
Kleeman and Minister for Immigration and Border Protection [2017] AATA 875
McKinnon v Secretary, Department of Treasury[2005] FCAFC 142
Minister for Immigration and Border Protection v Egan [2018] FCAFC 169
O’Sullivan v Farrer and Another [1989] 168 CLR 210
ReFenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health and Another (1995) 56 FCR 50 per Lockhart J
Roach v Electoral Commissioner [2007] HCA 43
Sankey v Whitlam and Others [1978] HCA 43
TRHL and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 803
TRHL v Minister for Immigration and Border Protection [2016] FCA 376
Waraich and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 4524
SECONDARY MATERIALS
Abdullah Athayi: Report on Citizenship Law: Afghanistan (Country report 2017/09, March 2017, European University Institute, Italy, 2017)
Australian Citizenship Policy, effective 1 June 2016
Kim Rubenstein: Australian Citizenship Law (Lawbook Co. 2nd edition, 2017)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
8 July 2019
Mr Sayed Muhammed Musawi (the Applicant) appeals to this Tribunal to set aside a decision made personally by the Minister for Home Affairs to revoke his grant of citizenship.[1]
[1] Section 37 Tribunal Documents at [9].
Although the revocation decision was made personally by the Minister, that decision is still reviewable by this Tribunal under the provisions of the Administrative Appeals Tribunal Act 1975 (Cth).
The Minister exercised his discretionary power of revocation under section 34(2) of the Australian Citizenship Act 2007 (Cth) (the Act) on the basis that he determined that it was “contrary to the public interest for the person to remain an Australian citizen”.[2]
[2] Australian Citizenship Act section 34(2)(c).
The basis of the Minister’s decision was that the Applicant had “been convicted of a serious offence” after he had made his application to become an Australian citizen.[3]
[3] Ibid section 34(2)(b)(ii).
Before considering the critical facts in this appeal it is necessary to outline the relevant provisions of the Act with particular emphasis upon the issues of timing which it establishes.
THE LEGISLATIVE FRAMEWORK
Individuals may lodge an application to be granted Australian citizenship (“citizenship by conferral”) under section 21 of the Act and to be granted that citizenship they must meet certain specified requirements; unless exempted they must pass a “citizenship test” and they must make a Pledge of Commitment.
One of those requirements (section 21(2)(h)) is that the applicant
“is of good character at the time of the Minister’s decision on the application”.
Under section 34(2) of the Act a conferral of citizenship may be revoked. The relevant parts of that section provide:
Citizenship by conferral
(2) The Minister may, by writing, revoke a person's Australian citizenship if:
(a) the person is an Australian citizen under Subdivision B of Division 2 (including because of the operation of section 32); and
(b) any of the following apply:
….
(ii) the person has, at any time after making the application to become an Australian citizen, been convicted of a serious offence within the meaning of subsection (5);
and
(c) the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.
(emphasis added)
Section 34(5) of the Act gives definition to the term “serious offence” as follows:
Serious offence
(5) For the purposes of this section, a person has been convicted of a serious offence if:
(a) the person has been convicted of an offence against an Australian law or a foreign law, for which the person has been sentenced to death or to a serious prison sentence; and
(b) the person committed the offence at any time before the person became an Australian citizen.
(emphasis added)
Section 3 of the Act, the “definitions” section of the Act, states:
"serious prison sentence" means a sentence of imprisonment for a period of at least 12 months.
It is thus clear that any convictions which the Minister may take into account in making determinations as to what constitutes the public interest in such cases must relate to offences which took place after the applicant applied for citizenship by conferral and prior to that citizenship being granted (sections 34(2)(b)(ii) and 34(5)(b)).
The Minister’s discretion is constrained by section 34(3) of the Act so that he may not make a determination which would result in the individual being rendered stateless.
(3) However, the Minister must not decide under subsection (2) to revoke a person's Australian citizenship if:
(a) the Minister may revoke the person's Australian citizenship under that subsection only because of the application of subparagraph (2)(b)(ii); and
(b) the Minister is satisfied that the person would, if the Minister were to revoke the person's Australian citizenship, become a person who is not a national or citizen of any country.
There are, as a result of this schema a number of questions that need to be addressed:
1.Did the Applicant commit, and was he sentenced to a term of imprisonment of at least 12 months, for offences committed between the time he lodged his application and the date when conferral was granted?
2.If so, is it “contrary to the public interest” for him to be allowed to retain that conferred citizenship?
3.Would revocation of his citizenship render the Applicant effectively stateless?
RELEVANT DATES AND CONVICTIONS
The Applicant was born in Afghanistan although the date of his birth is not formally recorded or known. He arrived, lawfully, in Australia in July 2008 at which time the Australian authorities assigned him a birth date he has used ever since.
On 6 November 2012 the Applicant lodged his application for citizenship by conferral and this was granted on 18 February 2018.[4]
[4] Dates in this section are set out in the Respondent’s Statement of Facts, Issues and Contentions pages 1-4.
Thus the relevant dates, when considering any offences and convictions, require that they occurred between 6 November 2012 and 18 February 2018.
Over a three day period in January 2014 the Applicant committed three separate offences of “robbery in company”. These occurred on 7 January 2014, 9 January 2014 and 10 January 2014. He was sentenced for these offences in April 2016 in the NSW District Court and sentences of imprisonment were imposed of 4 years and 10 months; 5 years and 4 years and 11 months respectively for each of the three offences.
At the same time, the Applicant was convicted of a further offence of “robbery in company” which had occurred in July 2015 and for which he was sentenced to a term of imprisonment of 4 years and 4 months.
Taking into account relevant factors in sentencing, the District Court Judge imposed an aggregate sentence of 8 years and 2 months with a non-parole period of five years and one month.[5]
[5] Section 37 Tribunal Documents at [82].
It is thus not a matter of any dispute that the Applicant committed and was sentenced to a term of imprisonment in excess of 12 months during the period in relation to which the Minister was required to make his determination.
PRIOR CONVICTIONS
The Applicant’s offences in January 2014 were not the first occasion that he had come before the courts. Prior to that date he had been before Burwood Local Court for offences committed in August 2013, namely:
·larceny and possessing an unauthorised pistol: for which he received a section 9 Bond of 12 months for each offence;
·larceny: where charges were dismissed under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW); and
·two offences of “goods suspected stolen in/on premises”: for which he received a section 9 Bond of 12 months on each offence.[6]
[6] Respondent’s Statement of Facts, Issues and Contentions pages 1-4.
SUBSEQUENT CONVICTIONS
It is important to note that on 7 April 2014 the Applicant was granted bail in relation to the three January offences for which he had been charged and which were to come to trial in April 2016.
On 30 July 2015 the Applicant committed a further offence of robbery in company, the details of which will be discussed below. This charge was dealt with by the District Court along with the January 2014 offences when the matter came to trial in April 2016.
The offence of 30 July 2015 took place while the Applicant was on bail and as a result he was placed in remand.[7] While in custody he was charged with two offences:
·Damage/destroy property: for which he was reprimanded and required to pay compensations, and
·Intimidation: for which he received a 28 day good behaviour bond.[8]
[7] Summonsed Material at [408].
[8] Ibid at [409].
DECISION / APPEAL DATES
On 27 November 2017 the Applicant was notified of the possible revocation of his citizenship and invited to make representations for consideration by the Department prior to the finalisation of any decision.[9] He was granted an extension of time to lodge such representations until 31 March 2018.[10]
[9] Section 37 Tribunal Documents at [63].
[10] Ibid at [84].
These representations were considered by the Minister in his decision making before he determined on 21 June 2018 to make the revocation decision.[11] The Applicant was notified of the decision on 28 June 2018 and advised that he had the right of appeal to this Tribunal within a 28 day period.[12]
[11] Ibid at [11] paragraph (12).
[12] Ibid at [5].
That appeal was lodged on 24 July 2018 and was heard by the Tribunal on 21 June 2019.
The letter from the Department of 28 June 2018 advised the Applicant:
“As a consequence of the Minister’s decision to revoke your Australian citizenship while you were in the migration zone, you were taken to have been granted an ex-citizen visa under section 35 of the Migration Act.”
This is a standard procedure in such cases where the individual concerned is the holder of a permanent resident’s visa but loses their citizenship. The ex-citizen visa allows a person to remain in Australia as a lawful non-citizen but ceases to have effect if the person leaves Australia. If they leave and seek to return they need to obtain a subsequent visa, with no guarantee that such a visa will be issued.
At its hearing the Tribunal was advised by counsel for the Minister that the Applicant’s ex-citizen visa has also been cancelled under the provisions of section 501(3A) of the Migration Act1958 (Cth) which mandates cancellation where a visa holder is convicted of an offence carrying a term of imprisonment of 12 months or more. In this instance this relates to the offence committed on 30 July 2015 which was not in consideration when the citizenship by conferral revocation decision was before the Minister, not having been committed within the relevant time period. Counsel further advised that the Applicant has sought to challenge this determination but had failed to lodge his representations within the prescribed time period.
APPLICANT’S PERSONAL HISTORY
Most of the information about the Applicant and his personal history is contained in the report of the psychologist Marlene Headington who provided a psychological assessment at the request of the Applicant’s legal advisors. Although some if it was amplified by testimony direct from the Applicant in the Tribunal’s hearing, the majority remains dependent upon what the Applicant told Ms Headington during the course of an interview which took place on 4 February 2016.[13]
[13] Applicant’s Evidence filed 11 June 2019.
The Applicant was born in Afghanistan and raised primarily by his mother and an uncle until at the age of about 13 years he was brought to Australia by his family after they were granted humanitarian visas. The Applicant reported a life of considerable disadvantage and poverty while living in Afghanistan. He reported that, as a child, he often saw dead bodies and on one occasion saw a “bomb explosion” in his village which killed 240 people.
His father apparently disappeared for some years but when he returned to a role in the family’s life he was aggressive, violent and prone to hitting his children, including the Applicant. At various times when the family was in Australia, the Applicant’s father would “disappear” to places unknown and at the present the Applicant has no contact with him or idea of his whereabouts.
The Applicant’s existing family has many dysfunctional characteristics. He reports having three brothers, all of whom have substance abuse issues, two of whom have been incarcerated, as one is at the moment. His mother is frail and apparently suffers from both physical and mental illness problems and he has a much younger sister.
The Applicant completed high school but found it to be a difficult environment reporting a lack of friends and being subject of bullying. After leaving school he did some work as a mechanic but was “let go” after failing to turn up for work on a number of occasions. He has never held continuing or stable employment and has been in receipt of the Newstart allowance for many years.
The Applicant reports a long history of substance abuse, beginning with cannabis around the age of 15 years and moving on to poly-drug use including cocaine and “ice” to which he became addicted and, when possible, used daily.
The psychologist, Ms Headington, provided a diagnosis of post-traumatic stress disorder (PTSD) and severe Depression based on both her interview and the administration of appropriate formal clinical tests/assessments.
APPLICANT’S OFFENCES
Details of the Applicant’s offences are set out in the remarks of the Sentencing Judge in the District Court.[14]
[14] Section 37 Tribunal Documents at [69]-[83].
It is useful to deal with them in three categories. In the first are the early offences, not part of the sentencing remarks, which led to the grant of Section 9 Bond orders. These do not appear particularly significant given that the Courts only imposed a Bond or else recorded a Section 10 dismissal. Nothing serious turns upon them, even the offence related to a pistol where the Applicant told the Tribunal that in Afghanistan it was not unusual for children to carry weapons and there are no details of the type of pistol or its provenance. There is one minor “possess prohibited drug” charge which attracted a $220 fine.
The second group of offences are those which occurred over the period 7-10 January 2014. In each of these cases the Applicant was in the company of three or four other persons, known to him, when, as a gang, they set upon a lone unprotected victim, robbed and bashed him and then ran away. These events appear to have been essentially opportunistic – the gang set upon a person who was, classically, in the wrong place at the wrong time. These victims were doing nothing wrong, they just happened to be particularly vulnerable in time and place.
Each offence was, as the Sentencing Judge remarked a “thuggish cowardly attack.” Victims were alone, vulnerable and subject to both robbery and physical assault. The Judge described the violence employed as “serious” and noted that all the men acted in concert “each knew what was expected from the other”.[15]
[15] Ibid at [74].
What made the offences more serious, in His Honour’s view was that in one instance the gang members pretended that they were police officers and that, taken together “they were not one-off offences; this was a pattern of behaviour.”[16]
[16] Ibid at [80].
The Applicant advances the explanation that each of these attacks was related primarily to a combination of his having fallen in with bad company and being under the influence of drugs. The money from robberies was used of both purchasing drugs and gambling. The Sentencing Judge in fact found “special circumstances on the basis of gambling and drug addiction and the psychological problems” when concluding the sentencing remarks.[17]
[17] Ibid at [82].
The final offence, considered by the Minister in relation to the cancellation of the ex-citizen visa, but not in relation to the revocation decision, had an additional element to it. In this instance there was nothing opportunistic about the attack. The Applicant, in company of others, sought out a victim and lured him to a place (a park in Auburn) where he was assaulted and robbed.
The crime was planned and premeditated; the victim was “set up”. In short, the narrative accepted by the Court was to the effect that the Applicant had met the victim at a tavern in on 25 July 2015 where the Applicant told the victim his name was Alex and that he was from Afghanistan. They drank together and played the poker machines, with the Applicant borrowing money from the victim. The Applicant asked the victim to give him his mobile phone number, which he did. Five days later the Applicant called the victim to suggest they meet again and then go the Applicant’s house to have a drink. The arrangement was for the victim to travel to the railway station and then contact the Applicant. Once the victim arrived at the railway station he contacted the Applicant on his phone and saw him in the car park of the RSL club not far from the station. He walked over to the Applicant and then the pair walked to a park oval.[18]
[18] Details as stated in sentencing remarks, ibid at [74]-[77].
The victim was a homosexual man whose statement to the Court gave details of the Applicant then making apparent homosexual advances to him. However, the victim was suddenly confronted by a gang of four other males, obviously known to the Applicant who proceeded to rob him, kick him and verbally abuse him and subjecting him to what the Judge described as “a malicious, vicious attack of a homosexual. …A completely defenceless victim was set up, attacked, punched and kicked, humiliated, for reasons that are not apparent – and it is all in breach of bail……..[w]hat a cowardly attack it was on a vulnerable and outnumbered victim. It was all pre-planned.”[19]
[19] Ibid at [77].
The offenders then ran from the scene and the victim fled in an opposite direction. He reported the assault to the police and gave them the number of a mobile phone which had been stolen from him and which was subsequently tracked to the Applicant.
The comments of the Judge are of particular significance. At the time of this attack the Applicant knew that he was on bail and charged with three other robbery in company offences. He repeated the very offence from which he had been bailed and was already awaiting trial.
At the conclusion of the trail which encompassed all four robbery in company charges, the Sentencing Judge stated:
“Now it is submitted as to the offender Musawi that he is young, there is additional focus on rehabilitation; I do accept that. He was 21 at the time of the offences, 22 at the time of the last one. He admits all the offences; he has some insight. He has post-traumatic stress and the anxiety and depression. I accept that will make prison more difficult. The offender says essentially in relation to remorse that he would feel bad if it happened to him. Well he would. One offence was actually committed in breach of bail, as I have already said, but the fact is that whilst he has shown some remorse, his prospects are still very limited. I cannot conclude that it is unlikely he will reoffend.”[20]
[20] Ibid at [81].
APPLICANT’S REMORSE / UNDERSTANDING / CHARACTER
The sentencing Judge noted the Applicant had some degree of insight into the nature and gravity of his offences. The psychologist’s report likewise adverts to this and in his evidence to the Tribunal the Applicant made statements of regret and contrition.
While the Applicant, who at his trial admitted to the 20 July 2015 offence, in evidence to the Tribunal denied that there was any element of homophobia on his part or that there was any deliberate selection of the victim because he was a homosexual. He denied the reported sexualised conversation between them that the Sentencing Judge put onto his remarks. He also denied that he had any negative feelings towards, or contempt for homosexuals. His counsel put forward the proposition that the Applicant’s guilty plea was intended to “spare the victim the embarrassment and hurt” of having to recount the events of the attack in details.
The Tribunal found that proposition unconvincing and unpersuasive. It sees no reason to set aside the clear evidence of the victim as accepted by the Court.
The Applicant has provided evidence that, while in custody, he has undertaken a number of programmes which he has completed successfully. These include the Gurnag Life Challenge (behaviour modification for young offenders) and the Equips Addiction programme. He has also earned a qualification as a fork-lift truck driver which will assist him in gaining employment.[21] He asserts that his time in prison has given him time for reflection and a determination to turn his life around and avoid both drugs and association with undesirable confederates.
[21] Applicant’s Evidence filed 11 June 2019.
The Applicant has supplied references from a number of people, some of which refer to his remorsefulness and contrition and determination to get his life back under control (Corrective Services Prison Chaplain Kilani; and his parents) and others to steps which might be taken by them to help his post-release rehabilitation and employment (his parents and his brother) while the family doctor (Dr Hamid) refers to the nature of family support available to the Applicant.[22]
[22] Idem.
There is one other bizarre submission, allegedly filed on behalf of the Applicant by a Mr B Khasemi which rambles incoherently across accusations that there was unreasonable delay, motivated by bad faith, in the processing of the citizenship application and alleging the Minister was in breach of section 44 of the Constitution by having an improper pecuniary interest in his dealings with the Commonwealth. Since the Tribunal is convinced that the Applicant himself probably had nothing to do with the submission and certainly would have no understanding of its import, the Tribunal discounts it as meaningless and irrelevant.
THE PUBLIC INTEREST
A “public interest” test is imposed by section 34(2)(c) of the Act in that it requires that there be a demonstrable public interest in any individual’s citizenship being revoked or cancelled, or at least that it would be contrary to the public interest for it not to be revoked. The process is very distinctly a two-step process. It requires that certain conditions be satisfied and then that a public interest test is applied.
As the Federal Court made clear in TRHL[23] although the term “public interest” is not defined in the legislation it should be understood in the following terms:
“As the appellant correctly noted the use of the expression ''public interest'' in a statutory provision imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statutory provisions: Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; (2012) 246 CLR 379 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [42]. The whole of the text must be considered when construing it: Alcan (NT) v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 per Hayne, Heydon, Crennan and Kiefel JJ at [47]”
[23] TRHL v Minister for Immigration and Border Protection [2016] FCA 376 at [29] per Gilmour J.
The term “public interest” is a notoriously slippery one and it means different things in different contexts.
As Lord Hailsham said in 1977, “The categories of public interest are not closed”,[24] and as the High Court discussed at length in Sankey v Whitlam and Others[25] this concept evolves over time and changes with differing material facts and circumstances. It is term “of wide meaning and not readily delimited by precise boundaries.”[26]
[24] D v National Society for the Protection of Children [1977] UKHL 1 at 218-9.
[25] Sankey v Whitlam and Others [1978] HCA 43.
[26] Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health and Another (1995) 56 FCR 50 per Lockhart J at 59.
Similarly, in a case dealing with different legislation, but which is nonetheless analogous, the High Court stated [27]:
“….. the Act provides no positive indication of the considerations by reference to which a decision is to be made as to whether the grant of an application would or would not be in the public interest. Indeed, the expression "in the public interest", when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only "in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be (pronounced) definitely extraneous to any objects the legislature could have had in view": Water Conservation and Irrigation Commission, per Dixon J. at p 505.”
[27] O’Sullivan v Farrer and Another [1989] 168 CLR 210 at [12].
The Tribunal will however, confine its consideration of the issue to trying to understand what the term “pubic interest” means within the context of Australia’s immigration and citizenship legislation and policies.
It is not helped by the fact that, as is often the case with statutes, there is, as noted, no attempt in the Australian Citizenship Act to define the term.
In McKinnon v Secretary, Department of Treasury[28] Tamberlin J stated as follows, in relation to the term "public interest":
12. The public interest is not one homogeneous, undivided concept. It will often be multifaceted and the decision maker will have to consider and evaluated the relative weight of these facets before reaching a final conclusion as to where the public interest resides ... In some circumstances, one or more considerations will be of such overriding significance that they prevail over all others. In other circumstances, the competing considerations will be more finely balanced so that the outcome is not so clearly predictable.
[28] McKinnon v Secretary, Department of Treasury[2005] FCAFC 142.
In DPP v Smith[29], the Supreme Court of Victoria defined the term "public interest" as follows:
The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and the well-being of its members. The interest is therefore the interests of the public as distinct from the interest of an individual or individuals.
[29] DPP v Smith[1991] 1 VR 63.
In Prasad the Tribunal discussed the balancing process of this decision-making framework, albeit within the framework of the Act as it was at that time:
The question remains whether the discretion conferred on the Minister by that sub-section should have been exercised to deprive the applicant of his Australian citizenship. In the absence of any ministerial policy with regard to the exercise of the discretion, I have come to the conclusion that, as in the case of the exercise of the discretion to deport criminal offenders pursuant to section 55 of the Migration Act, the advantages to the Australian society of depriving the applicant of his citizenship have to be weighed against any disadvantages to that society and any disadvantages and hardships likely to be caused to the applicant or other persons as the result of doing so.[30]
[30] Bijai Prasad and Minister Assisting the Minister of Immigration, Local Government and Ethnic Affairs [1993] AATA 209 at [41].
These authorities lead to a conclusion that in the absence of clear statutory definitions or explicit Ministerial policy Directions, it is left to the Tribunal to consider what the public interest is in each individual case, taking into account the particular circumstances of that case and the overall objectives (to the extent they can be ascertained) of the Act.
In that respect, the Tribunal must have regard to the Preamble to the Act. It is unusual for Australian federal legislation to have a Preamble (as distinct from an Objectives clause) and hence it is an indication that the Parliament expected decision-makers to draw some guidance from its provisions.
Preamble
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.
The Preamble is more than simply a declaratory statement. In Roach, Chief Justice Gleeson of the High Court discussed it in the following terms:
“The preamble to the Australian Citizenship Act 2007 (Cth) declares that 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. The reference to the reciprocity of rights and obligations is important in the context of membership of the community. Serious offending may warrant temporary suspension of one of the rights of membership …... “[31]
[31] Roach v Electoral Commissioner [2007] HCA 43 at [12].
The importance of citizenship is emphasised at the outset of the Citizenship Policy document which states: “Citizenship is a cornerstone of Australia’s inclusive and pluralist democracy.”[32]
[32] Citizenship Policy page 15.
Deputy President Breen said in Fenn:
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home...[33]
[33] ReFenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].
In Ahmadi the Tribunal stated:
The conferral of citizenship is a privilege and those reposed with the task of assessing applicants necessarily are required to carry out their duties with due vigilance and with a critical eye.[34]
[34] Ahmadi and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1086 at [171].
“Due vigilance” requires the Tribunal to take note of a subtle but important difference between section 34 of the Act dealing with revocations and those sections of the Act which deal with its granting. There is nothing in the granting provisions which turn upon an assessment of what is in the public interest.
Throughout the Act, most references to a public interest test are expressed in terms of what might be “contrary to the public interest”[35] – the formula used in section 34(2)(c).
[35] See sections 35(A); 35(14); 51B(2)(d); 35B (3)(d).
The importance of distinguishing between what may be “in” the public interest and what is “contrary to” the public interest was discussed by the Tribunal in Waraich in the following terms:
71. I also note, however, that section 34(2)(c) is expressed in terms of it being contrary to the public interest for a person to remain an Australian citizen. It is not expressed in terms of it being in the public interest for a person no longer to remain an Australian citizen. The difference between these two formulations is significant and critical. Some submissions or remarks of Counsel for the Minister I consider blurred this distinction and did not faithfully observe it.
72. Nor was it explained to me how deterrence is an aspect of it being contrary to the public interest that an applicant should remain an Australian citizen. No case was cited to me on a role for deterrence under section 34(2)(c) as I would have expected and that could be because of the way it is expressed.
73. Furthermore, deterrence in this matter was, I consider, achieved at the time of the criminal court sentencing. This matter is not a criminal case. Despite the Minister citing the Court’s comments, it is not evident to me that the sentencing magistrate intended her comments to be referred to in support of a view that the Applicant be deterred further by revocation of his citizenship.
74. I can of course see that it is important in a general way to maintain the integrity of both the migration and citizenship regimes as aspects of the public interest. But I can only see their integrity being maintained via section 34(2)(c) in a particular case only if in the context of that case it is contrary to the public interest for an offender to remain an Australian citizen.
75. in that regard it is not enough in my view merely to point to an offender’s convictions as if it was self-evidently so. Section 34(2)(c) is not expressed in a way which allows that. Merely being convicted does not make it self-evidently contrary to the public interest for a person to remain an Australian citizen. There may be very many good reasons why it is in fact in the public interest for a convicted person to remain an Australian citizen.
76. It is not however a question under section 34(2) (c) of what is in the public interest but only of what is contrary to it. More needs to be shown than merely convictions to show it is contrary to the public interest for a convicted person to remain an Australian citizen and that in my view was not shown by the Minister in this case.
77. I consider it not contrary to the public interest for the Applicant to remain an Australian citizen by ensuring he is not or may not be singled out in his household or in the community as the only one in his household who is not an Australian citizen by reason of offences committed years ago and for which there were unexplained delays.
78. I consider it not contrary to the public interest for the Applicant to remain an Australian citizen if he admits he has engaged in wrongdoing, as he has, and has paid the price for it and if also he has no prior or subsequent convictions and no prospect of re-offending.
79. It was submitted, finally, that I should take special note that the decision under review was made by the Minister personally. Reference was made to some remarks of Justice Downes in this regard. However his remarks do not alter my approach in any way. It remains a question of whether section 34(2)(c) of the Act is satisfied or not. That remains the question even taking special note that it was the Minister’s own personal decision. [36]
[36] Waraich and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 4524.
Although the precise details in Waraich and this case are different (timing issues, other convictions, prospects of reoffending) the principles are clearly applicable and the Tribunal’s statement that mere conviction alone is not proof of something being contrary to the public interest should guide this Tribunal in its own decision-making.
SECTION 34(3)(B) PROHIBITION
The Minister may not make a revocation decision which results in a previous citizen becoming “a person who is not a national or citizen of any country.”
The Applicant was born in Afghanistan and thus the Tribunal must be satisfied (as was the Minister in the first instance) that he has either retained or would regain his Afghan citizenship if deprived of his Australian citizenship.
Article 4 of the Constitution of Afghanistan[37] provides, relevantly:
“No individual of the nation of Afghanistan shall be deprived of citizenship.”
“The citizenship and asylum related matters shall be regulated by law.”
[37] The Constitution of the Islamic Republic of Afghanistan, art 4.
Current citizenship provisions are regulated by the Law on Citizenship of the Islamic Emirate of Afghanistan.[38]
[38] Section 37 Tribunal Documents at [34]-[41]. Although undated, it appears that this law came into effect on 11 June 2000.
Afghan citizenship law has traditionally rejected the concept of dual citizenship[39] and Article Seven of the current law provides:
“Anyone who, according to the orders of this law, is citizens (sic) of the IEA (Islamic Emirate of Afghanistan) can not hold a double citizenship position.”
[39] Abdullah Athayi: Report on Citizenship Law: Afghanistan (Country report 2017/09, March 2017, European University Institute, Italy, 2017) at page 13.
On the other hand, Article Nine (1) provides:
“Obtaining citizenship of the IEA, deprivation from it or losing it can take place only if it is compatible with the tenets and principals (sic) of Islam.”
Living abroad does not lead to loss of citizenship (Article Five) and lost citizenship can be restored (Article Thirty-Five). Under the current law, the right of citizenship is not automatic but dependent upon a grant (Article Twenty-Three) although any person who was a citizen at the date of the new law is automatically qualified. A person is also qualified if one of his or her parents was a citizen, regardless of the individual’s place of birth (Article Eleven).
To the best of the Tribunal’s knowledge the citizenship laws of Afghanistan are those cited above, which came into effect on 11 June 2000. However it is aware of the fact that a draft citizenship law was promulgated in 2017 which proposed significant changes in arrangements, including those on dual citizenship, but it has been unable to establish if that draft law has yet been enacted.[40]
[40] Ibid.
As a result it relies upon the advice from the Minister that the current law is that of June 2000.
Consideration of those laws would lead to the conclusion that the Applicant while possibly having forfeited Afghan citizenship while holding Australian citizenship would, in the absence of that citizenship be entitled to be regarded as a citizen of Afghanistan.
Hence section 34(3)(b) considerations would not prevent the Minister from coming to his decision regarding revocation.
It is not to be assumed that were the Applicant’s grant of citizenship by conferral and his ex-citizen visa both be revoked/cancelled that it follows that the Applicant would be deported or returned to Afghanistan, even though he would no longer be a visa holder.
Although section 501E of the Migration Act 1958 prohibits an applicant whose visa has been subject to mandatory cancellation on the basis of their criminal offences from making an application for any other form of visa, there is an exclusion (section 501E (2)(a)) which allows for an application for a Protection Visa.[41] If granted, a protection visa has the effect of potentially allowing an applicant to be released from (or not placed in) immigration detention and not being subject to the prospect of removal from Australia “as soon as reasonably practicable.”[42]
[41] Subject to further limitations in section 48A of the Migration Act which would not apply in this case.
[42] Sections 196 and 198 Migration Act.
The Tribunal should not speculate on whether or not any application for a protection visa would be successful, its role is merely to note that such an application could be made and that there are not necessarily any automatic consequences of a determination to uphold the revocation decision.
DISCUSSION
Revocation of Australian citizenship is a rare occurrence. The Tribunal notes this and recognises the gravity of the decision which it has to make.
It also notes that there is relatively little judicial or Tribunal authority on this matter, with only a limited number of cases being determined in recent years.
According to the authoritative text by Kim Rubenstein: Australian Citizenship Law, between 1948 (when the original Migration Act was passed) and the end of May 2016 there had been only 20 revocations of citizenship, seven of which appear to have been revoked on the basis of the individual having supplied false information as part of their citizenship application.[43]
[43] Kim Rubenstein: Australian Citizenship Law (Lawbook Co. 2nd edition, 2017) pages 255-56.
The Tribunal has not been able to source any data about the number of such revocations since May 2016 but is aware of a number of cases before it where the basis for cancellation of the citizenship related to the “substantial criminal record” of the individual concerned.[44] A more significant number of revocations appear to be grounded on matters such as the applicant not being of good character; failing to make the pledge of commitment or using false documents to obtain initial citizenship.
[44] TRHL and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 803; TRHL v Minister for Immigration and Border Protection [2016] FCA 376; Kleeman and Minister for Immigration and Border Protection [2017] AATA 875; Egan v Minister for Immigration and Border Protection [2017] AATA 2705; Minister for Immigration and Border Protection v Egan [2018] FCAFC 169; Galuak and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 2301.
Given that the Minister’s discretion was enlivened by the offences committed by the Applicant and given that such discretion is not fettered by considerations of statelessness, the Tribunal must consider what matters make it “not in the public interest” for the Applicant to be allowed to remain a citizen.
These necessarily include (but are not limited to):
1.the nature and severity of the offences in question, including the status and vulnerability of any victims involved;
2.the circumstances of the Applicant at the time of the offences, including questions of his mental or psychological health, his age and his degree of personal responsibility for the offending behaviour;
3.the circumstances of the Applicant subsequent to the offences, including expression of genuine remorse, insightfulness, contrition, his degree of rehabilitation and prospects of reoffending; and
4.The extent to which, had the offences been known to the decision-maker who approved the citizenship application in the first place, that decision would have been made differently.
It is clear from the evidence that the Applicant has committed numerous offences and that a pattern of robbery in company emerges in which he, together with confederates, seek to rob and in the process assault, lone vulnerable victims. The attacks, although opportunistic in terms of timing have a quality of premeditation and in the instance of the 30 July 2015 offence, entirely premeditated and planned in detail. This latter offence also included a clear element of homophobic behaviour resulting in the further insult and degradation of the victim.
This latter offence was committed while the Applicant was on bail, knowing that he faced three charges in relation to exactly the same sort of offence. The Applicant had also established a record of committing offences while he was on good behaviour bonds.
In his own defense the Applicant says that his offences were occasioned by his drug-taking behaviour, that he suffered from both PTSD and severe depression, that he had found it difficult to adjust to life in Australia, and that he was young and immature – easily led by other people. He admitted his offences when pleading guilty before the courts, thus sparing victims the further trauma of testifying. He says he is now more mature, understanding of his behaviour, remorseful and regretful and that he has learned from his prison experience, including ceasing to use drugs.
He goes on to say that he is dedicated to finding a job and stable employment and that he has the support of his family members in Australia, the majority of whom are Australian citizens and capable of giving him financial and economic support.
Additionally, he makes the point that he has no network of support in Afghanistan and that he is fearful of being returned to that country, especially given his previous experiences and his own status as a member of a religious/ ethnic minority.
Counsel on his behalf pointed to the Applicant still being a young man (aged 24 years) with time to sort out his life and establish a stable pattern of behaviour, relationships and employment and argued that it would be “extraordinarily hard” to parlay four days of bad behaviour at age 21 into a loss of Australian citizenship with all the security, advantages and privileges which attach to it.
Counsel for the Minister draws to attention the nature and repetition of the offences, the status of the victims, what the Minister considers to be the Applicant’s lack of genuine remorse and the prospects of reoffending as outlined by the Sentencing Judge. The Minister’s submission also makes the following points:
·that it cannot be in the public interest to allow people to remain as Australian citizens if they repeatedly break the law and commit serious offences, even repeating similar offences while on bail, and
·there is a community expectation that people granted Australian citizenship will be people of “good character”; that those who are not, should be excluded from the privilege of citizenship and further, that had the offences in question been known to the original decision-maker it is highly unlikely that the original application would have been approved.
The latter point carries considerable weight.
When an application is before the primary decision-maker, a key consideration for them is whether or not the applicant is a person of “good character”. It would be assumed that a person convicted of several serious offences and sentenced to a (relatively) lengthy term of imprisonment would not so qualify and that, under those circumstances, such an original application for grant of citizenship by conferral would be rejected. That consideration would doubtless be given further weight were the 20 July 2015 offence and sentence to be taken into account.
There is no doubt that the Applicant has suffered a traumatic childhood and that his adjustment to life in Australia has not been easy. However this is the case with many people who have arrived in Australia from situations similar to that of the Applicant. It does not follow that such circumstances lead to a life of drug-taking and crime. Those are choices which some individuals make. Others do not.
Australian citizenship is indeed a privilege – one that, for those not born into citizenship, has to be earned. It can only be given to people who are of “good character”. To grant it to people who do not meet that test is to diminish and devalue its significance. The Citizenship Act is a legislative framework to ensure a form of “quality control” and to reflect the legislative intent of the Parliament and thus the expectations of the Australian community.
To fail to recognise this and to grant citizenship where an applicant is not qualified for it, would certainly be contrary to the public interest.
The offences committed by the Applicant are of such a nature as to cause him to fail to meet the basic requirements of good character which the Act requires. To allow such a person to remain a citizen would be contrary to the public interest.
It may be that at some time in the future, if the Applicant is allowed to remain in Australia, and has matured sufficiently and rehabilitated himself to a significant degree, he will exercise his right to make further applications for citizenship,[45] with the possibility that a different outcome might result. That again is speculation but it is not beyond the realms of possibility.
[45] ReFenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].
DECISION
The decision under review is affirmed.
I certify that the preceding 110 (one hundred and ten) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
..............................[sgd].........................................
Associate
Dated: 8 July 2019
Date(s) of hearing: 21 June 2019 Solicitors for the Applicant: Mr G Williams, City Attorneys Counsel for the Respondent: Mr P Knowles Solicitors for the Respondent: Mr C Brinley, Clayton Utz
0
14
0