Qarkaj and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

Qarkaj and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 2273 (29 June 2023)
Division:GENERAL DIVISION
File Number(s): 2022/0720
Re:Qarkaj, Arben
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Dr N A Manetta
Date:29 June 2023
Date of written reasons: 28 July 2023
Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the Tribunal is satisfied that the applicant is of good character for the purposes of section 21(2)(h) of the Australian Citizenship Act 2007 (Cth).
..........[sgnd]..............................................................
Senior Member Dr N A Manetta
CATCHWORDS
CITIZENSHIP – application for Australian citizenship refused – whether applicant is of “good character” under section 21(2)(h) of the Australian Citizenship Act 2007 (Cth) – applicant’s criminal history considered – serious offending but person’s character can change over time – last offending 15 years ago – current personal circumstances considered – applicant has stable marital relationship and three children in Australia – applicant operates a successful business trading honestly – decision under review set aside
LEGISLATION
Australian Citizenship Act 2007 (Cth)
CASES
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422; [1996] FCA 663
KXDZ and Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2022] AATA 175
Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430; [2021] HCA 1
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
VFWQ v Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230
Zahidy and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 2431
REASONS FOR DECISION
Senior Member Dr N A Manetta
28 July 2023

After I delivered my decision with oral reasons, I received a request for written reasons, which I now publish. These are the reasons I read out to the parties with minor amendments.
This is an application by Mr Arben Qarkaj seeking a review of a decision of the respondent’s delegate dated 18 January 2022. By that decision the delegate refused Mr Qarkaj’s application for citizenship under section 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (“the Act”), which required the delegate to be satisfied that Mr Qarkaj was of good character. The delegate found that she was not so satisfied. Having reached that conclusion, the delegate rejected Mr Qarkaj’s application for citizenship as she was obliged to do.
The only question before me concerns Mr Qarkaj’s character.
TRIBUNAL’S TASK
Hearing the matter afresh on the evidence adduced before me, I must decide whether I am satisfied that Mr Qarkaj is of good character. I must evaluate the facts as at the date of my consideration of the matter: see VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230. In these sorts of matters, the Tribunal conducts a hearing on the merits, reaching the correct or preferable decision on the evidence before it.[1] The Tribunal does not simply review the delegate’s decision for error. This means that I may affirm the decision under review if that is the correct or preferable decision on the evidence before me, notwithstanding the presence of an error in the delegate’s reasons. Equally, I may set aside the decision under review notwithstanding the absence of any discernible error in the delegate’s reasons if that is the correct or preferable decision on the evidence before me.
[1] See, for example, Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [98] and [141].
STATEMENT OF CONCLUSION
I have decided to set aside the decision under review and to substitute a decision that I am satisfied that Mr Qarkaj is of good character.
I now set out the background facts and the reasons for this conclusion.
BACKGROUND FACTS
The essential background facts are as follows. Mr Qarkaj was born on 26 January 1980 in Albania. He arrived in Australia on 5 January 2001, aged almost 21 and holding a Global Special Humanitarian visa. Mr Qarkaj arrived, however, under a false identity. He claimed to be a person named “Artan Hasani” whose date of birth was 13 October 1979, and he further claimed to be fleeing violence in Kosovo. It is quite clear that Mr Qarkaj lied to the Australian Government about his true identity and did so for the purpose of entering Australia on humanitarian grounds. Australia was a country he believed would offer him far better economic opportunities. His false story was accepted in the event. Mr Qarkaj’s true identity was only discovered in 2007 as a result of information provided to Australian authorities by the Albanian police. I have read what the respondent has put about the cancellation of Mr Qarkaj’s visa in paragraphs [5] to [6] of its of its Statement of Facts, Issues and Contentions.[2] I note these paragraphs but shall not recapitulate them.
[2] Ex R5.
On 22 December 2019, Mr Qarkaj lodged an application for citizenship. The respondent’s Department invited him to comment on adverse information suggesting he was not of good character including a number of offences which it is accepted he committed in the years from 2002 to 2008. In particular, I mention here Mr Qarkaj’s conviction of ‒ and I use the official “legalese” description ‒ “aggravated causing serious harm with an intention to cause serious harm”. This offence occurred on 31 July 2008. It resulted in a very long sentence of five years, nine months (and an aggregate sentence of six years, four months when another offence was taken into account). A non-parole period of 20 months was imposed. In the event, as I have said, the delegate refused Mr Qarkaj’s application for citizenship.[3]
[3] Ex R1, 74ff.
Mr Qarkaj served part of his sentence in gaol, and, as at the date of my decision today, the head sentence expired many years ago. So far as Mr Qarkaj’s personal circumstances are concerned, I note that he is married. He married in 2007. The couple have three children, the oldest of whom is about to turn 15, while the younger two are 10 and 6.
Mr Qarkaj has been a hard-working man in recent times, principally engaged in construction-related roles. Witnesses were called attesting to his positive work ethic and, in one case, to his honesty as the supplier of bins to his construction firm. This witness, Mr Ikonomakis, noted Mr Qarkaj’s honesty in an industry that is often marked by dishonesty. Mr Qarkaj has been largely self-reliant since leaving gaol. I accept that he is a committed family man who is doing his best to provide for them.
I now turn to consider Mr Qarkaj’s criminal offending. First, it is a serious matter ‒ and, of course, a criminal offence ‒ for a person to enter Australia in the manner that Mr Qarkaj did; namely, under a false identity after telling lies about his eligibility for a humanitarian visa. I do bear in mind, however, that Mr Qarkaj entered Australia when he was not quite 21. The decision he took then was clearly wrong, but the context is the immature desire to emigrate from a country which had comparatively poor economic prospects. That does not excuse Mr Qarkaj’s behaviour in breaking Australian law; but his youth does provide a context for its proper evaluation.
I accept also that once he had entered Australia under a false name with a false date of birth, Mr Qarkaj became, in one sense, stuck with that identity. Owning up to his deception would have been the right thing to do; but the fact that he did not do so is partly understandable given the concerns he would have had about being prosecuted for a criminal offence and his fears of deportation. Once again, I do not excuse the behaviour, but his ongoing failure to reveal his identity needs to be assessed in a context where it might be fairly said that Mr Qarkaj had become enmeshed in his own lie.
Mr Qarkaj’s entire criminal record was in evidence before me and I have considered it.[4] There have been a number of offences in Australia. These have included cannabis production. Most concerningly, Mr Qarkaj was convicted of the cultivation of cannabis in 2008. He was sentenced on that occasion to ten months’ imprisonment, but it was suspended on his entering into a bond to be of good behaviour for two years. I regard the cultivation of cannabis as a very serious offence. It stands in contrast to the lesser offence of purchasing an illicit drug supplied by another. Even consumers participate in the drug trade, of course, because they assist a pernicious practice to continue to thrive economically; but a consumer does not actively and deliberately participate in the production of the drug. The cultivator of cannabis is in a different position altogether. That person assists directly in the propagation of the drug-trade and directly participates in the causing of harm to the community for financial gain. The sentence of ten months that was imposed in May 2008 (albeit suspended) was a significant one. It marked how serious Mr Qarkaj’s behaviour was. It was, in my view, seriously antisocial behaviour.
[4] Ex R1, 72-73.
I also act on the basis that this was not an isolated event. I note that I accept the police apprehension reports from 2002 onwards[5] that link Mr Qarkaj to the production of cannabis in the circumstances set out in the reports. Whether those matters have actually led to a criminal conviction[6] does not seem to me to be decisive if I am otherwise satisfied that the events recorded in the reports have most probably occurred. I am satisfied that is the case here. But I bear in mind that the last of the reports concerning cannabis dates from 2005, more than 17 years ago. I should also bear in mind, I believe, that Mr Qarkaj was still relatively young, namely 25 or less, when these offences were committed, although he was certainly no longer a teenager or even a very young adult.
[5] See, for example, Ex R3, 2, 11, 22, 54, 67.
[6] Mr Qarkaj’s criminal record does disclose two other occasions where he was convicted of cannabis production or manufacture: see Ex R1, 73. These convictions resulted in fines only.
The criminal record discloses that Mr Qarkaj has a history of other antisocial behaviour including assaults. These assaults caused some degree of harm to each of his victims. Mr Qarkaj has also been involved in disorderly behaviour outside a nightclub and in the carrying of an offensive weapon. There have also been occasions of driving while disqualified.
His behaviour during this part of his life may be appropriately stigmatised as defiant and antisocial. Mr Qarkaj was clearly prepared to use violence to respond to a perceived slight, insult or annoyance, and he was also prepared to participate directly in the production of a drug that causes widespread harm in the community. In this latter connection, I wish to say expressly that cannabis is a very harmful drug, whatever tolerance there may be for its recreational use in some social circles. This drug can cause considerable harm to the consumer, and the person who produces it or participates in its production must bear the moral culpability for the harm the drug causes to more vulnerable or susceptible community members. In any event, its cultivation and use are prohibited by law. No-one is free to ignore the law.
I now turn to consider the most serious of the offences of which Mr Qarkaj has been convicted and to which I earlier referred; namely, aggravated causing serious harm with an intention to cause serious harm. The circumstances are set out in the Supreme Court’s sentencing remarks, which were before me.[7] I have read the remarks carefully.
[7] Ex R3, 106ff.
There are noteworthy features of the offending. First, it involved a fight, and fights were a regular feature of Mr Qarkaj’s life at that time. I also accept that the immediate precursor to the fight was a traffic accident, a serious accident no doubt, but a traffic accident nevertheless. That accident took place at an intersection in July 2008.
Mr Qarkaj demonstrated that he was unable to navigate the tension and arguments that followed on from this accident. Tension and arguments often follow vehicle collisions. Responsible members of the community do not react with violence unless it is strictly in self-defence. It would appear that a number of people surrounded Mr Qarkaj, but the sentencing remarks record that the police were in the vicinity following the collision. It is clear that Mr Qarkaj was not acting in self-defence when he drew out a knife (which he happened to be carrying according to the sentencing Court) and stabbed his victim three times. Mr Qarkaj was convicted by verdict after a contested trial.
The sentencing Court said as follows:
In sentencing you I accept that you had been provoked and threatened throughout the evening by the group of men who outnumbered you. I accept that you believed that your wife had been threatened. I accept that you were concerned about her and about your child. On the other hand, there were police officers nearby. It was unnecessary in all the circumstances for you to produce and use a weapon.[8]
[8] Ex R3, 107.
I accept and rely upon the entirety of the Court’s remarks, and I accept the accuracy of what the Court put in the paragraph I have just quoted. I note that the sentencing Court rejected any suggestion of self-defence or a lack of deliberate purpose. The Court said explicitly that it was satisfied that during his altercation with the victim, Mr Qarkaj stabbed the victim three times deliberately.[9]
[9] Ibid.
It is quite clear from the sentencing remarks that Mr Qarkaj was most fortunate. Two of the three wounds inflicted by him were “potentially fatal”.[10] Had they proved fatal, Mr Qarkaj would have been charged, no doubt, with murder (at least given my understanding that the mens-rea requirement for murder in South Australia is an intention to inflict grievous or serious bodily harm rather than an intention to kill as such). It was very fortunate, indeed, that ambulance officers were able to transport the victim promptly to the Royal Adelaide Hospital, where he was successfully treated.
[10] Ibid.
This offending is extremely serious because it did have the potential to kill a member of the Australian community, and, of course, it inflicted very serious injury. I do not proceed on the basis that Mr Qarkaj intended to kill his victim, but I reiterate that he deliberately stabbed his victim three times and intended to do him serious harm. This point is made by the sentencing Court.[11]
[11] Ex R3, 108.
The long sentence that was imposed reflected, as I have said earlier, the gravity of the offending. I note that it was a long sentence even after Mr Qarkaj’s extenuating personal circumstances were taken into account.
The Court further noted that the offending occurred while Mr Qarkaj was under a bond to be of good behaviour for two years. The Court noted that Mr Qarkaj was just six weeks into that period when the offending occurred.[12] That is a very serious matter, and he was sentenced to 10 months imprisonment to be served cumulatively.
[12] Ex R3, 109.
This offending, taken in conjunction with the other matters to which I have referred, marked Mr Qarkaj, at this stage of his life, as posing a serious threat to the good order of the South Australian community. There is no doubt about that in my mind, and of course I have no doubt that at this point in his life, Mr Qarkaj was not of good character.
Mr Qarkaj served a period of time in gaol, and his head sentence expired a long time ago. There have been no further offences marked against his name in his record. The last and most serious offences were committed almost 15 years ago. After his release from gaol, Mr Qarkaj has built up a responsible family life, and he has contributed to the community. He has shown himself to be responsible in maintaining a stable marital relationship and raising three children.
The respondent directed my attention to the fact that Mr Qarkaj has continued to use his assumed identity in Australia together with his real identity. For his part, Mr Qarkaj submitted that he is registered with a number of agencies under his assumed name and identity, and that he has had difficulties changing his name. The respondent did not suggest that there was anything unlawful in Mr Qarkaj continuing to be known under the name of “Hasani”, the name he had when he first entered Australia in 2001, or that he had an ulterior purpose in continuing to use his assumed identity. The respondent put to me that Mr Qarkaj ought to have done more to seek to change his name, so that he would be known only by one name in the community. But I do not doubt that it may prove difficult for a person to change official records, such is the caution that responsible authorities bring to bear on the question of identity, especially where, as here, there is a different date of birth to be registered. I believe that if there had been an easy way for Mr Qarkaj to have re-registered himself under his real name and real date of birth after his identity had been discovered in 2007, he would have taken the necessary steps. Even so, I do take into account that Mr Qarkaj persisted in the Australian community with a false identity until he was found out.
REASONS
So far as the law is concerned, I was referred by the respondent to certain departmental citizenship procedural instructions. In KXDZ and Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2022] AATA 175 (“KXDZ”), I explained my reasons for declining to apply the instructions as a matter of law although I accept that they may be lawfully issued to departmental officers under the respondent’s direction, in effect as an instruction manual. I refer again to that discussion, and I would also refer to the case of Zahidy and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 2431 referred to and extracted in KXDZ. I shall not set out that discussion but merely refer to it. I also set out in KXDZ my understanding of what it means to be “satisfied” of a particular matter, and my discussion in that case was informed by the High Court’s decision in Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430; [2021] HCA 1. Again, I content myself with referring to the analysis without repeating it.
The concept of “good character” has been discussed in a number of decisions including the Federal Court authority of Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422; [1996] FCA 663. As has been made clear, over time the correct characterisation of a person’s character within the two categories of “good” and “not good” can change. The effluxion of time coupled with the absence of behaviour that negatively impacts character, together with the presence of positive character traits and contributions to Australian society, can result in an applicant becoming a person of good character.
In this case, I must weigh the very significant delinquent aspects of Mr Qarkaj’s life up to the commission of the very serious offence on 31 July 2008, which led to his imprisonment for a considerable period of time. There were multiple facets of Mr Qarkaj’s life to that point which marked him as a person of strong antisocial tendencies culminating in the offending involving the infliction of serious bodily harm.
But the last offence was committed in 2008, which is a very long time ago, almost 15 years. Moreover, in this case, Mr Qarkaj has, on the evidence before me, demonstrated strongly pro-social choices in respect of his more recent participation in Australian society. These include the maintenance of a marital relationship, the fathering and raising of three children in a stable home environment with his wife, and his economic independence as the operator of a successful business, which, according to the evidence before me, has traded honestly and reliably. I follow and apply his Honour Justice Lee’s observations in Irving v Minister for Immigration, Local Government and Ethnic Affairs.[13] Although Mr Qarkaj committed a most serious crime, and has committed other crimes, he has demonstrated, in my opinion, that he “has reformed and is of good character”[14] as at the date of my decision.
[13] (1996) 68 FCR 422 at 431-3 (Lee J).
[14] See Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, at 432 (Lee J). See also at 425 per Davies J: “If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed.”
CONCLUSION AND FORMAL DECISION

As at the date of my decision, therefore, I am satisfied that Mr Qarkaj is of good character notwithstanding the very serious matters in his past to which I have referred. Having reached that conclusion, I shall set aside the decision under review and substitute a decision that the Tribunal is satisfied that Mr Qarkaj is of good character.
I certify that the preceding thirty-three (33)
paragraphs are a true copy of the reasons
for the decision herein of Senior Member
Dr N A Manetta
…[sgnd]………………………………
Associate
Dated: 28 July 2023
Date of hearing:  27 & 28 February 2023
Advocate for the Applicant:               Ms Marion Le
Marion Le Consultancy
Advocate for the Respondent:           Mr Alex Chan
Sparke Helmore

[2023] AATA 2273

29 June 2023

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction