Will being charged with a drugs offence spell disaster for a citizenship application?
What if the applicant does not disclose on the citizenship application that she/he has been charged with an offence?
What if the applicant does not acknowledge responsibility for the offence in correspondence with the Department?
What if the applicant is still on probation at the time that the citizenship application is being considered by the AAT?
All of these issues were raised in a recent case, Kerris and Minister for Immigration and Border Protection (Citizenship) (2017) AATA 1148 (19 July 2017).
This was the factual background of the case:
The applicant was a 26 year old citizen of New Zealand, who applied for Australian citizenship by descent.
On 21 May 2015, she was arrested by the Queensland Police, and was charged with producing a dangerous drug. The circumstances were that the applicant was present at a leased residence as a visitor when the police executed a search warrant. They found that a number of tarps had been spread out on the main verandah of the house, and observed that “an enterprise involving the stripping of marijuana leafy materials from the stems” was in progress. The applicant was discovered “under the house” after the raid. The sentencing judge observed that the applicant was found hiding under the house “because she knew she was in trouble by reason of what was going on on the veranda”.
However, another circumstance was that the applicant had suffered significantly from cancer and had experienced what the court described as a “dysfunctional childhood”.
So the outcome before the Queensland Court was that although the applicant had pleaded guilty to the charge, no conviction was recorded. Instead, she was sentenced to probation for a period of 3 years.
This is what happened with her citizenship application: It was submitted on 25 May 2015, just a few days after the applicant was arrested. It was originally rejected due to non-payment of the application fee, which resulted from her credit card being declined due to insufficient funds. It was subsequently resubmitted.
The applicant answered a question on the application form that asked whether she had ever been charged with any offences that were awaiting legal action by stating “no”, and she did not change this answer when she resubmitted the application, even though she had been charged with the drugs offence.
Also: in corresponding with the Department concerning her application, after she had been placed on probation, the applicant, in the words of the Tribunal, “basically denied any active involvement in the criminal enterprise” which was the subject of her conviction. She asserted that the evidence against her was “circumstantial at best”, and that her arrest had simply been a matter of her being at the wrong place at the wrong time.
So was any of this “fatal” to the citizenship application?
Here are the answers:
First, the Tribunal found that making a false statement on a citizenship application is not necessarily fatal to the application, citing the case of Bilouni v Minister of Immigration and Multicultural Affairs as authority.
The Tribunal took the view, based on its observations of the applicant at the hearing, that the applicant had not intended to mislead the Department, and that her actions in not revising the application to disclose the charge against her were “negligent, but not deceptive”.
Second, although the Minister’s lawyers argued that the seriousness of the charge, one carrying a maximum penalty of 20 years imprisonment, should prevent the approval of the citizenship application.
The Tribunal was not persuaded by this submission. It took the view that since the applicant did not have any other criminal history, had not had a conviction recorded against her, and had not been given a custodial sentence, the mere fact that she had been charged and had pleaded guilty to an offence did not preclude a finding that she was a person of good character.
As for the applicant’s failure to accept responsibility for the offence in her correspondence with the Department, what saved her before the Tribunal was that changed her story, no longer maintained that she had been innocent and that she had pleaded guilty only for convenience, and accepted her guilt and “expressed contrition”. Had she not expressed “unqualified acceptance of culpability”, her previous failure to accept responsibility may well have spelled the end of her application.
Speaking of the end: what, in the end, ultimately caused the application to fail before the Tribunal was that, at the time the case was heard, the applicant was still on probation.
The Tribunal declared that: “It is inconceivable that a Tribunal could make a positive good character finding when an applicant has not completed the terms of a probation order.
So, even though the Tribunal had “formed a very positive view of the applicant”, it nonetheless found that far too little time had passed since the probation order had been made, and that fact that the probation order was still in force prevented the approval of the citizenship application.
Effectively, the Tribunal held that the applicant should re-apply at a later date, observing that time and consistent good conduct would be the only way that the question of whether the applicant was truly a person of good character could be answered affirmatively.
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