Buljeta and Mininster of Immigration and Multicultural and Indigenous Affairs [2003] AATA 10 (8 January 2003)

Last Updated: 13 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 10

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/56

GENERAL ADMINISTRATIVE DIVISION )

Re FRANJO BULJETA

Applicant

And MINISTER OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms G Ettinger - Senior Member

Date 8 January 2003

Place Sydney

Decision The Administrative Appeals Tribunal affirms the decision of the Minister of Immigration, and Multicultural and Indigenous Affairs who, on 31 December 2001, revoked the grant of Australian Citizenship made to Mr Franjo Buljeta on 14 September 2001 on the basis that he was not of "good character" pursuant to section 13(1)(f) of the Australian Citizenship Act 1948.

[SGD] Ms G Ettinger

Senior Member

CATCHWORDS

Citizenship - revocation of grant - power - whether of good character - decision affirmed

LEGISLATION

Australian Citizenship Act 1948 ss 13(1)(f), 13(11), 14B, 50

Acts Interpretation Act 1901 s 33(3)

CASE LAW

Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771

Re Hamwi and Department of Immigration and Ethnic Affairs (AAT N93/854, 25 July 1994)

Drake v Minister for Immigration and Ethnic Affairs (1979 2 ALD 60

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Peterson v Minister for Immigration and Multicultural Affairs (AAT 13432, 6 November 1998)

REASONS FOR DECISION

8 January 2003 Ms G Ettinger - Senior Member

1. The decision under review before the Administrative Appeals Tribunal ("the Tribunal") was the decision of the Minister of Immigration and Multicultural and Indigenous Affairs ("the Department"), dated 31 December 2001 (T3), which revoked the grant of Australian Citizenship made on 14 September 2001 to Mr Franjo Buljeta, the Applicant in these proceedings, on the basis that he was not of "good character" pursuant to section 13(1)(f) of the Australian Citizenship Act 1948 ("the Act").

2. The Applicant was self-represented and the Respondent Department was represented by Mr A Mullins, solicitor of Blake Dawson Waldron.

ISSUE BEFORE THE TRIBUNAL

3. The issue before the Tribunal was whether the decision to revoke the grant of Australian Citizenship on 31 December 2001 to Mr Buljeta was the correct and preferable decision (T3). In making that decision, it was necessary for the Tribunal to decide whether Mr Buljeta was of "good character" pursuant to section 13(1)(f) of the Act.

LEGISLATIVE CONTEXT

4. The relevant legislation in this matter is the Acts Interpretation Act 1901 ("the Acts Interpretation Act"), in particular section 33(3), and the Australian Citizenship Act 1948 ('the Act"), in particular section 13(1)(f). As relevant these sections of the Acts follow:

ACTS INTERPRETATION ACT 1901

"33 Exercise of powers and duties

(3) Where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by-laws) the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument."

AUSTRALIAN CITIZENSHIP ACT 1948

"13 Grant of Australian citizenship

(1) Subject to this section, the Minister may, in the Minister's discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:

...

(f) the person is of good character;

..."

5. The Tribunal notes that section 14B of the Australian Citizenship Act 1948 (effective from 1 July 2002), provides for a power to revoke the approval of the grant of Australian citizenship prior to conferral.

"14B Revocation of grant of certificate of Australian citizenship before conferral of citizenship

(1) If:

(a) a certificate of Australian citizenship has been granted to a person under this Division after the commencement of this section; and

(b) the person has not become an Australian citizen under section 15; and

(c) either:

(i) if it were assumed that the certificate had not been granted and the person were to make a fresh application for the certificate, the Minister would be required to make a decision under section 13 refusing the application; or

(ii) the person has failed to make a pledge of commitment within 12 months after the day on which the person was notified of the Minister's decision under section 13 to grant the certificate, and the person does not have an acceptable reason for the failure;

the Minister may, in the Minister's discretion, revoke the grant of the certificate.

..."

EVIDENCE BEFORE THE TRIBUNAL

6. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T-documents"), and the following other documents:

ITEM DATE EXHIBIT NUMBER

Police check from the Consulate General of Belgium 12 April 2002 Exhibit A1

Documents from the Consulate General of Switzerland 16 & 17 September 2002 Exhibit A2

Letter from World Service Authority 27 August 2002 Exhibit A3

Fax message from Shapiro Gems 4 March 2002 Exhibit A4

Statement from Shapiro Gems 24 June 2002 Exhibit A5

Statement from Coolen D.C. 17 July 2002 Exhibit A6

Marriage Certificate of Mr Buljeta 30 November 1971 Exhibit A7

Hospital Records of Mr Buljeta at Cartella Clinica, Milan 27 June 1994 ~ 4 September 1994 Exhibit A8

T-Documents T1 - T32 Exhibit R1

Documents from Interpol Canberra 11 April 1999 Exhibit R2

Document from Interpol Canberra 31 March 1999 Exhibit R3

franjo buljeta

7. Mr Buljeta whose birth date was 28 October 1932, and whose birthplace was Croatia (Zagreb, Yugoslavia (A7)), gave oral evidence before the Tribunal, and made closing submissions.

8. Mr Buljeta opened by telling me that he had come to Australia to be Australian, and to be free, and that there was no way he could return to the land of his birth because he would be killed if he did. During his evidence, which was lengthy, and during his closing submissions, he repeated several times his hatred of Communism, and how he had refused to become involved in the Ustashi movement in Australia.

9. Mr Buljeta told me that he had first come to Australia in 1958, how he considered coming here to be a great privilege, and that he had not previously applied for citizenship because he had been busy leading his life as a musician and later as a dealer in gems. The Applicant explained that he had had appointments to play music in nightclubs and that his stage name as he put it, was Chacker Frank or Frank Chacker. Mr Buljeta was proud of the fact that in a refugee camp in Italy he had won first prize from amongst 50 musicians, and had appeared on television there in connection with his music.

10. The Applicant readily agreed in cross-examination that he had held false passports in a variety of other names, including (Exhibits R2 and R3):

* Konstrinskiewic Cleopoldin

* Kostrinskiewic Cleopoldin

* Kotrinskiewic Cleopoldin

* Kotronshiewic Cleopoldin

* Kotrinski Leopold

* Bird Michael

* Turk Brian Richard

* Kovic Steve

* Amacher Robert

* Seccomandi Luigi

* Koprinovic Hans

11. Mr Buljeta explained how it was he came to have so many aliases and false passports. He explained that when he left Australia holding a Yugoslavian passport in 1973 to visit his ailing mother who had been released after being jailed for 20 years in connection with political issues, he had a re-entry visa for Australia, valid for two years. Mr Buljeta said that his passport was stolen in Germany in 1973, and that he had been unable to replace it without going back to Yugoslavia where he would have faced certain death. Accordingly, he explained that he had to obtain false passports and identities to survive and to do business in Europe, and had done so for 25 years, before returning to Australia in 1998. He said that because he was not a criminal he was able to travel and work without detection, "as long as the passport is clean".

12. Mr Buljeta was proud that he had entered hospital for a throat cancer operation in Italy in 1994 with identification in his real name, fearing that in case of any misfortune, his mother might not otherwise be able to be notified. He said that while in hospital, he received a type of passport from the World Service Authority (Exhibit A3), which was confiscated by the Italian authorities in Genoa in 1996. When it was pointed out to Mr Buljeta during his questioning that the document was only valid for six countries, he said that he did not know, neither did he care at the time.

13. He also gave evidence that he had been accused of driving a stolen car in Genoa in 1996, which proved to be wrong because it was his friend's car. He said that the gems and money he had been carrying had been confiscated. These had not yet been returned he said, because the court case was ongoing and might not be concluded for 10 years.

14. Mr Buljeta said that on his return to Australia with a false Greek passport in the name George Sakiris, he had been detained in the Villawood Detention Centre where he had stayed for 17 months and a day, until his release when an Australian visa was issued to him.

15. I noted that he had applied to the Refugee Review Tribunal ("RRT") and been refused refugee status in a decision dated 22 June 1998, followed by an appeal to the Federal Court which had remitted the case to the RRT. The later finding of the RRT had been made on 15 January 1999, which was followed by the grant of Australian Citizenship on 14 September 2001.

16. Mr Buljeta's comment regarding Interpol documents tendered by the Respondent, Exhibits R2 and R3 was that they were fabricated, and that the incidents shown on them were not true. He said he was not a criminal, and had never stolen anything in his life.

17. I asked Mr Buljeta about a list of criminal activities as listed in the Respondent's Statement of Facts and Contentions, which alleged he had either been charged or convicted as follows. Details of those and his replies are recorded below:

YUGOSLAVIA

27.01.47

The Respondent: "Theft - sent to correctional institution."

The Applicant: A Communist ploy; pressure on him as a 15 year old because his father was in hiding and only he knew the whereabouts.

08.04.49

The Respondent: "Vandalism - Zagreb District Court - 1 year and 6 months hard labour."

The Applicant: A history of post-war Yugoslavia and explanation that a group of 60 students (including Mr Buljeta), was charged with vandalism for refusing to learn the Russian language; five days in jail; brutalised, hospitalised.

23.02.51

The Respondent: "Theft - Zagreb Departmental Tribunal - 8 years imprisonment."

The Applicant: An outburst alleging "fabrication"; Mr Buljeta stated that he had never stolen anything in his life. He said he studied music and because the authorities could not find his father who was in hiding, took it out on him.

22.05.53

The Respondent: "Theft - 1 year imprisonment."

The Applicant: Disagreed; said he was in the army for one and a half years.

20.09.55

The Respondent: Theft - Military Court - 2 years imprisonment."

The Applicant: The Applicant said that in February/March 1955 he was arrested and incarcerated in a military jail, sentenced to 12 years and served 14 months before escaping.

22.04.59

The Respondent: "Theft - Zagreb district court - 10 months imprisonment."

The Applicant: The Respondent's submission not tenable. Mr Buljeta said he arrived in Italy in January or February 1958 and was in a refugee camp for seven months where he won a prize for his singing. He sailed to Australia on the Aurelia at the end of 1958.

AUSTRALIA- NSW

29.01.60

The Respondent: "Found in gaming house - £5 or 10 days hard labour."

The Applicant: He said he was in Melbourne playing music in a nightclub.

06.05.60

The Respondent: "Stealing - no evidence, discharged."

The Applicant: He said it hinged on a woman who wanted money from him and had called the police; police connected with prostitutes.

25.08.60

The Respondent: "Driving without a licensed driver beside him - £1 or 48 hours hard labour."

The Applicant: Mr Buljeta said that he had a licence, but he was charged.

25.08.60

The Respondent: "Offering bribe to Police office - £12 or 33 days hard labour."

The Applicant: He said that he had a licence; there was no bribe.

11.01.65

The Respondent: "Stealing - good behaviour bond."

The Applicant: Mr Buljeta said that he did not steal anything; there was no bond; he could not remember.

22.06.65

The Respondent: "Resisting arrest and indecent language."

The Applicant: He could not remember.

29.06.66

The Respondent: "Attempt to steal unsuspected person."

The Applicant: No. He alleged it did not happen.

03.11.72

The Respondent: "False pretences (x2)."

The Applicant: All fabrication; don't know

AUSTRALIA: VICTORIA

24.02.64

The Respondent: "Loitering with intent to commit a felony. Appealed."

The Applicant: He said that he remembered coming out of the racecourse at Randwick and being arrested. Mr Buljeta said that he was sentenced to six months in custody but only served four months.

22.07.64

The Respondent: "Appeal against conviction of 24.02.64 dismissed and sentence affirmed."

The Applicant: No comment.

10.02.65

The Respondent: "Loitering with intent - applicant failed to appear. Warrant issued."

The Applicant: As above; only one incident.

AUSTRALIA: QUEENSLAND

15.02.65

The Respondent: "Vagrancy - 7 days imprisonment."

The Applicant: Mr Buljeta said that he was at the race course in Brisbane with Mr Schultz and there were people who wanted to buy opals; agreed he spent 7 days in jail.

AUSTRIA

The Respondent: "Penal proceedings pending against the applicant before Salzburg Regional Court, Case No 24VR2739/81 on suspicion of fraud."

The Applicant: No fraud whatsoever; people who bought precious stones from Mr Buljeta wanted their money back two days later because they could not onsell them, alleging they had been overcharged. He said he refused.

BELGIUM

22.08.70 & 06-15.10.76

The Respondent: "Applicant detained in Belgium for forgery and use of false passport."

The Applicant: Mr Buljeta said that the allegation was wrong; the authorities had said that his passport was invalid in 1973.

NEW ZEALAND

1975 -1982

The Respondent: "No convictions"

The Applicant; Never been in New Zealand.

ITALY

January 1978 - 26.05.81

The Respondent: "Applicant was a member of a gang of vehicle traffickers who illegally transported Mercedes and BMW vehicles stolen in the Federal Republic of Germany, Italy and Spain from Milan to the Near East, used forged vehicle documents and number plates. The Applicant used forged identification papers to commence the offences.

Applicant arrested for criminal organisation, theft, and forgery.

Applicant arrested in Italy and subsequently convicted of vehicle trafficking. He served a sentence of imprisonment in Italy until the end of 1982."

The Applicant: Wrong; no vehicle trafficking; arrested in 1981 sitting in a car with a person due to being in possession of a false passport which Mr Buljeta agreed he was using.

May 1991

The Respondent: "Vehicle trafficking.

Applicant sentenced to 1 year and 11 months imprisonment for May 1991 offence."

The Applicant: Selling precious stones; going to Greece on a yacht from Ancona; arrested - agreed he was carrying a false English passport; sentenced to two years, served 18 months in Ancona.

26.11.92

The Respondent: "Arrested for theft and forgery. Consequently expelled from country."

The Applicant: Mr Buljeta was emphatic that he was expelled from Ancona, not Italy, as he continued to live in Italy for a further two years.

17.03.94

The Respondent: "Investigated for smuggling, false identity and forgery."

The Applicant: Wrong; in Belgium at the time.

25.07.94

The Respondent: "Arrested for receiving stolen goods"

The Applicant: Wrong, in hospital for throat cancer operation in Italy at the time.

11.05.96

The Respondent: "Arrest order - the Applicant charged with receiving stolen goods."

13.04.96

The Respondent: "The Applicant was provisionally arrested for receiving stolen goods."

The Applicant: Borrowed a friend's car to drive from Milano to Genoa; friend arrived back to clarify matters two days after his arrest in Genoa. US travel document (Exhibit A3) found not to be valid; precious stones on consignment and $US13,300, confiscated.

The Applicant agrees proceedings are pending but says they will not be finalised for ten years or more, as the authorities do not want to return his valuable belongings.

SWITZERLAND

1994

The Respondent: "Applicant known to Swiss authorities in Zurich for suspicion of international traffic with cars between Italy-Switzerland and France-Germany as well as for suspicion of illegal trade with weapons, false money and narcotics."

The Applicant: Mr Buljeta referred the Tribunal to Exhibit A2, document of the Ministry for Justice, Switzerland dated 16 September 2002 which states that he "is not registered in the criminal record."

SUBMISSIONS AND CONCLUSIONS

18. Having heard the evidence, I had to take into account the submissions of the parties, the legislation and case law to make the correct and preferable decision regarding Mr Buljeta's Australian Citizenship, and consider the reasons for the revocation of the grant. To do so, I had to decide whether the Applicant was of "good character" pursuant to section 13(1)(f) of the Act.

19. I was mindful that "good character" is not defined in the Act, and noted mention of it in Clause 5.4.2 of the Australian Citizenship Instructions ("Citizenship Instructions") which state as relevant:

"The term 'good character' is not defined in the Act, so decision makers should be guided by the ordinary use of the words in making assessments. It is the responsibility of the applicant to show that they are of good character. An applicant may be presumed to be of good character unless there is evidence to the contrary..."

20. I accepted that: "An applicant's behaviour does not have to be faultless, but the aggregate of his or her qualities must be weighed against ordinary community standards of behaviour." (Clause 5.4.3 of the Citizenship Instructions).

21. I was mindful of the comments of Deputy President Chappell (as he then was), in Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771 that the standard of good character was higher for citizenship cases due to the responsibilities and privileges attached to a grant of citizenship.

22. I noted that in Re Hamwi and Department of Immigration and Ethnic Affairs (AAT N93/854, 25 July 1994), Deputy President McMahon provided instructive comments as to determining the "good character" of an applicant for citizenship. He stated:

"In Re Strangio and Minister for Immigration and Ethnic Affairs Decision No 9593, 8 July 1994 at paragraph 33, I again emphasised that in deciding what constitutes a "good character" one must look at the aggregate of the subject's distinguishing qualities objectively to determine whether the person is held in good repute. I suggested in that decision that ordinary community standards should be applied in giving content to a good character required by the statute. It was not necessary that the person should have an exemplary or saintly character. I said "one should look at his or her general reputation in the Australian community on the basis of full disclosure, or if the person is not in not in Australia then whether those qualities are likely to be accepted as demonstrating an adherence to ordinary standards of good behaviour in the Australian community. So long as the legislation relies on this concept, then a value judgment needs to be made in each case. It is to be made upon the basis of the situation existing at the time when the decision is to be made, either by the original decision-maker or by this Tribunal"."

23. I proceeded then to consider first the provision of a document by Mr Buljeta over which I have made a suppression order, and then moved to consider whether he is of "good character" pursuant to section 13(1)(f) of the Act.

document held pursuant to section 35(2) of the aat act

24. I note here for the sake of completeness that a document which Mr Buljeta gave to the Tribunal during Tribunal conferences which preceded this hearing, and which was also seen by the Respondent at the Hearing, and which I find to be irrelevant to decision making in this matter, is held as part of Mr Buljeta's file N2002/56. It is being held as a confidential document pursuant to section 35(2) of the Administrative Appeals Tribunal Act 1975. For purposes of the record, I note that the discussion of the document which has been recorded on transcript and which took place between 2:00 pm and 2.20 pm on the day of hearing, is similarly embargoed.

power to revoke citizenship

25. Mr Mullins submitted that information obtained by the Respondent after the grant of Australian citizenship, but before it was conferred indicated that Mr Buljeta was not of "good character" pursuant to section 13(1)(f) of the Act, and that accordingly, the grant had been withdrawn. I noted that the decision maker had stated that:

"... information has come to the attention of the deciding officer. Had this information been known at the time of the original approval decision, your application for Australian Citizenship would have been refused. The information related to your ability to meet Section 13(1)(f) of the Australian Citizenship Act 1948, which requires an applicant to be of 'good character'." (T3)

26. In that regard, Mr Mullins indicated that Mr Buljeta had not completed the application for grant of citizenship form (T25), correctly, and had omitted to mention convictions as required at Question 43 of the application form. Mr Buljeta had ticked "no" instead of "yes" in reply to the question inquiring whether he had ever been convicted of, or found guilty of any offences. I noted Mr Buljeta's reply was that the question did not specify that the offences included any offences committed in Europe. I did not accept that explanation. The question was quite clear and emphasised in upper case "ANY offences".

27. Mr Mullins submitted that the new information leading to the withdrawal of the grant of citizenship included offences mentioned in the Interpol documents (Exhibits R2 and R3) now before the Tribunal, and also referred me to T30, a letter of 2 November 2001 of the Department of Immigration and Multicultural Affairs as it then was, in which the delegate had written as follows:

"Since the decision made on 14 September 2001 to approve your application for Australian Citizenship, information relating to your alleged criminal record dating back to 1947 in Yugoslavia and other European countries has come to the attention of the deciding officer. Details of this information is as follows:

* Zagreb:

- 8 April 1949, sentenced to one year and six months hard labour for vandalism;

- 23 February 1951, sentenced to two years imprisonment for theft;

- 21 May 1953, sentenced to one year imprisonment for theft;

- 22 April 1959, sentenced to ten months imprisonment for theft

* Yugoslavia:

- 20 September 1955, sentenced to two years imprisonment for theft

* Italy:

- 29 May 1981, arrested for criminal organisation, forgery and theft;

- 1981 - sentenced for vehicle trafficking and imprisoned until 1982;

- 26 November 1992, arrested and sentenced to twenty three months imprisonment for theft and forgery and consequently expelled from Italy;

- 25 July 1994, arrested for receiving stolen goods;

- 13 April 1996, provisionally arrested for receiving stolen goods;

- April 1996, arrested for driving a stolen vehicle;

- 11 May 1996 the Judicial authority in Genoa issued an arrest order with the charge of receiving stolen goods

* Vienna

- Pending penal proceedings before Salzburg Regional Court on suspicion of fraud

* Belgium

- 22 August -15 October, detained for forgery and holding a false passport"

28. Mr Mullins submitted that the Respondent accepted that some of the items listed in the Respondent's Statement of Facts and Contentions referred to arrests and charges without conviction, but that the Respondent relied in particular on offences committed in Italy in 1981, 1991 and 1996, noting that the 1996 matter had not yet been finalised. He also referred me to section 50 of the Act submitting that Mr Buljeta had breached that section of the Act in his failure to disclose. Section 50 of the Act follows as relevant:

"50 False representations etc.

(1) A person shall not, for a purpose of or in relation to this Act:

(a) make, or cause or permit to be made, a representation or statement that is, to the knowledge of the person, false or misleading in a material particular; or

(b) conceal, or cause or permit to be concealed, a material circumstance."

29. I noted that a breach of section 50 of the Act attracts a penalty of 12 months imprisonment.

30. Having heard the above, I considered the power to revoke the grant of citizenship, and consulted section 33(3) of the Acts Interpretation Act which clearly states that:

"Where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by-laws) the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument."

31. I did not discern any contrary intention in the Act, and accordingly find that the Respondent had the power to revoke Mr Buljeta's grant of Australian Citizenship. I noted in particular that the revocation was made in advance of a required pledge of commitment, and further that the grant was made on the basis of the delegate not having been informed of Mr Buljeta's full and lengthy criminal history (as listed above).

32. Accordingly I was satisfied that the Respondent had the power to revoke the grant of Australian Citizenship, and that this Tribunal has the power to review that decision. I moved then to consider the Applicant's submissions and to consider whether he was of "good character" pursuant to section 13(1)(f) of the Act.

33. For the sake of completion, I noted that since amendments dated 1 July 2002 came into effect, there is an explicit power to revoke the approval of the grant of Australian Citizenship prior to conferral. I was mindful of course that the revocation of Australian Citizenship in Mr Buljeta's case was made on 31 December 2001, before the current amendments were passed but was satisfied for the reasons given above, that there was a power for the Respondent to do so. As relevant the amendment to the Act follows:

"14B Revocation of grant of certificate of Australian citizenship before conferral of citizenship

(1) If:

(a) a certificate of Australian citizenship has been granted to a person under this Division after the commencement of this section; and

(b) the person has not become an Australian citizen under section 15; and

(c) either:

(i) if it were assumed that the certificate had not been granted and the person were to make a fresh application for the certificate, the Minister would be required to make a decision under section 13 refusing the application; or

(ii) the person has failed to make a pledge of commitment within 12 months after the day on which the person was notified of the Minister's decision under section 13 to grant the certificate, and the person does not have an acceptable reason for the failure;

the Minister may, in the Minister's discretion, revoke the grant of the certificate.

..."

applicant's submissions

34. Mr Buljeta told me, and I accepted that he had arrived in Australia by ship from Italy in 1958, and that he had first applied for citizenship on 23 November 1999 which was refused on 7 February 2000.

35. Mr Buljeta had also been refused refugee status after an application to the RRT as documented in its decision of 22 June 1998 (T16). Mr Buljeta appealed that decision to the Federal Court where Katz J NG671/98 (T19/89) set aside the decision, and remitted it to the RRT to be reheard. On rehearing, the RRT held on 15 January 1999 N98/26121 (T22), that "the applicant is a person to whom Australia has protection obligations under the Refugees Convention" and remitted the matter to the decision maker.

36. Mr Buljeta also clarified the date of his marriage by tendering his marriage certificate (Exhibit A7), and drawing to my attention the fact the Respondent had cited the date incorrectly in its documents.

37. Further to the issue of passports; Mr Buljeta told me that he left Australia with a valid Yugoslavian passport in 1973 with what he recalled was a two-year re-entry visa for Australia. Mr Buljeta's evidence was that this passport was stolen in Germany in 1973, and that he was unable to have it replaced without travelling to Yugoslavia. He said he could not go back to Yugoslavia and therefore embarked on 25 years of obtaining and using false passports and identities. He explained that this was the only way he could survive. Mr Buljeta's submissions were that all the activities he undertook in selling precious stones on consignment were legitimate, and that he travelled all over the world doing that work.

38. Mr Buljeta also submitted that his arrests in Italy had been characterised incorrectly. He said he had only been arrested twice and not three times. He said that in 1981 all his confiscated goods had been returned to him. In 1991 however, he had served 18 months before being expelled from Ancona, but not Italy he said, as he continued to reside in Italy for a further 18 months. Mr Buljeta said that in 1996 he had only been jailed for three days and the charges dropped when it was found the car he was driving which was suspected of being stolen, was his friend's. He agreed there were proceedings pending in Italy, and said that his precious stones which were confiscated by the authorities had not been returned.

39. However it appeared from the evidence before me which is detailed in the paragraphs above, that there were activities in addition to those surrounding the obtaining of false passports undertaken by Mr Buljeta which attracted charges, several guilty verdicts, and indeed incarceration in various countries, including Australia.

40. Mr Buljeta disagreed with many items on the list of charges, reasons for convictions, and dates of incarceration as shown on the Respondent's Statement of Facts and Contentions. He did however agree that he had been arrested and jailed three times in Italy:

* In 1981, an occasion when he said his forfeited goods were returned to him;

* In 1991, he had been sentenced to two years in jail in Italy, and had served 18 months when he was expelled from Ancona. Mr Buljeta did not accept he was expelled from Italy. He insisted he was only expelled from Ancona, because he said that he continued to live in Italy for a further 18 months.

* In 1996, when for the first time after 25 years, he had a valid passport in his own name. Mr Buljeta said that the charge of driving a stolen car was just wrong as his friend, to whom the car belonged, came to Genoa and he was released after three days. However he said that US$13,300 and precious stones he had on consignment to sell were confiscated and have to date not been returned. He estimated the case could take another 10 years and acknowledged it was still pending.

41. Mr Buljeta submitted that the documents at Exhibits R2 and R3 were false and that I take his version of the evidence as the correct one. He indicated that Exhibit R3 indicated that he was in Switzerland in 1994, whereas he had in fact been in Belgium, and had been hospitalised with throat cancer in Italy in June and July 1994. (Exhibit A8)

42. Details of the 1981,1991 and 1996 matters from my questioning of Mr Buljeta follow:

ITALY

January 1978 - 26.05.81

The Respondent: "Applicant was a member of a gang of vehicle traffickers who illegally transported Mercedes and BMW vehicles stolen in the Federal Republic of Germany, Italy and Spain from Milan to the Near East, used forged vehicle documents and number plates. The Applicant used forged identification papers to commence the offences.

Applicant arrested for criminal organisation, theft, and forgery.

Applicant arrested in Italy and subsequently convicted of vehicle trafficking. He served a sentence of imprisonment in Italy until the end of 1982."

The Applicant: Wrong; no vehicle trafficking; arrested in 1981 sitting in a car with a person due to being in possession of a false passport which Mr Buljeta agreed he was using.

May 1991

The Respondent: "Vehicle trafficking.

Applicant sentenced to 1 year and 11 months imprisonment for May 1991 offence."

The Applicant: Selling precious stones; going to Greece on a yacht from Ancona; arrested - agreed he was carrying a false English passport; sentenced to two years, served 18 months in Ancona.

26.11.92

The Respondent: "Arrested for theft and forgery. Consequently expelled from country."

The Applicant: Mr Buljeta was emphatic that he was expelled from Ancona, not Italy, as he continued to live in Italy for a further two years.

17.03.94

The Respondent: "Investigated for smuggling, false identity and forgery."

The Applicant: Wrong; in Belgium at the time.

25.07.94

The Respondent: "arrested for receiving stolen goods"

The Applicant: Wrong, in hospital for throat cancer operation in Italy at the time.

11.05.96

The Respondent: "Arrest order - the Applicant charged with receiving stolen goods."

13.04.96

The Respondent: "The Applicant was provisionally arrested for receiving stolen goods."

The Applicant: Borrowed a friend's car to drive from Milano to Genoa; friend arrived back to clarify matters two days after his arrest in Genoa. US travel document (Exhibit A3) found not to be valid; precious stones on consignment and $US13,300, confiscated.

The Applicant agrees proceedings are pending but says they will not be finalised for ten years or more, as the authorities do not want to return his valuable belongings.

the respondent's submissions

43. Mr Mullins submitted that assessing good character pursuant to section 13(1)(f) of the Act required reference to the Australian Citizenship Instructions, emphasising what the Respondent considered to be the relevant Clauses:

the australian citizenship instructions

clause 5

44. Mr Mullins submitted that key sources of information with regard to the Applicant's character were the application form as completed by Mr Buljeta. He submitted that Mr Buljeta had not answered truthfully. He submitted that notwithstanding Clause 5.2 allowed for "quashed, pardoned or spent convictions" (T6/16), which according to Clause 5.2.3 had nevertheless to be disclosed.

45. Mr Mullins submitted, that in relation to T25, the "Application for Grant of Citizenship", Mr Buljeta had replied untruthfully, in breach of section 50 of the Act as follows:

"Question 4: Have you been known by any other names (such as name at birth, alias, previous married name)

Mr Buljeta: No

Question 43: Please answer the following questions about yourself and any children included in this application

(a) Have you ever been convicted of, or found guilty of ANY offences? (include all traffic offences which went to court)

Mr Buljeta: No

(b) ... (d)

(e) Are you aware of any proceedings pending against you for an offence including proceedings by way of appeal or review?

Mr Buljeta: No

(f) Have you ever been involved in any activity, or been convicted of any offence, relating to the illegal movement of people to any country (including Australia)

Mr Buljeta: No"

46. I noted Mr Buljeta's argument that he thought that Question 43 of the Application Form applied to European offences, and replied accordingly. I did not accept that argument and agreed with the Respondent that the replies to the questions were wrong in material particulars. Mr Buljeta was in breach of section 50 of the Act in answering the questionnaire.

clause 5.3

47. Mr Mullins then drew my attention to section 13(11) of the Act, submitting that the mandatory requirement of that sub-section was that the Minister "shall not" grant a certificate of citizenship to an applicant if he failed to satisfy any of the conditions in that sub-section. As relevant, section 13(11) of the Act follows:

"The Minister shall not grant a certificate of Australian to a person under subsection (1), (9), (9B), or (9E):

(a) during any period during which proceedings for an offence against a law of the Commonwealth, a State or a Territory (including proceedings by way of appeal or review) are pending in relation to the person;

(b) during any period during which the person is confined to a prison in Australia;

(c) during the period of 2 years after the expiration of any period during which the person has been confined in a prison in Australia by reason of the imposition on the person of:

(i) a sentence of death that has been commuted to a sentence of imprisonment; or

(ii) a sentence of imprisonment for life or for a period of not less than 12 months; or

(ca) if the person is a serious repeat offender in relation to a sentence of imprisonment (within the meaning of subsection (11A)- during the period of 10 years after the end of any period during which the person has been confined in a prison in Australia because of the imposition on the person of that sentence; or

(d) if the person has been released from serving the whole or a part of the sentence of imprisonment on parole or upon licence to be at large - during any period during which action can be taken in respect of the person under a law of the Commonwealth, a State or a Territory by way of requiring the person to serve the whole of that sentence, or the whole or a part of the remainder of that sentence, as the case requires; or

(e) if the person has been released by a court from serving the whole or a part of a sentence of imprisonment upon the person's giving a relevant security - during any period during which action can be taken in respect of the person under a law of the Commonwealth, a State or a Territory by reason of a breach of a condition of that security;

(f) during any period during which the person is confined in a psychiatric institution by order of a court made in connection with proceedings of the kind referred to in paragraph (a) in relation to the person; or

(g) if the person has ceased to be an Australian citizen - during the period of 12 months commencing on the day on which the person ceased, or last ceased, to be an Australian citizen."

48. I was not satisfied that Mr Buljeta's record of proven offences and imprisonment, was referable to section 13(11) of the Act.

clause 5.4

49. Mr Mullins submitted, referring to Clause 7.5 and 7.6 of the Respondent's Statement of Facts and Contentions that:

"7.5 The term "good character" is not defined in the Act. Accordingly, decision makers are required to give the term its ordinary meaning (para. 5.4.2 of the Policy).

7.6 In Irving v Minister for Immigration , Local Government and Ethnic Affairs (1996) 68 FCR 422, the Full Federal Court made observations about "good character" and section 501 of the Migration Act 1958. Lee J remarked at (431-432):

"Unless the terms of the Act and regulations require some of the meaning be applied, the words "good character" should be taken to be used in their ordinary sense, namely a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion: See Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1999) 122 ACTR 25."

See also Minister for Immigration and Multicultural Affairs v Baker (1997) 73 FCR 187; Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321; Jia v Minister Immigration and Multicultural Affairs (2001) 178 ALR 421."

50. Referring to Clause 5.4.3, he submitted that the Guidelines in relation to section 13(1)(f) of the Act were as follows: "An Applicant's behaviour does not have to be faultless, but the aggregate of his or her qualities must be weighed against ordinary community standards of behaviour. "

51. Mr Mullins also submitted, referring to Clause 7.8 of the Statement of Facts and Contentions of the Respondent that:

"In re Milnar (sic) and Minister for Immigration and Multicultural Affairs (1997/8) 48 ALD 771, Deputy President Chappell stated that:

'The standard of good character should be even higher for citizenship cases and section 501 matters because of the importance of citizenship and the greater responsibilities and privileges attached to it.'"

52. Mr Mullins referred me to Clause 5.4.4 which I noted dealt with the assessment of "good character", said to involve:

* "establishing whether or not an applicant has a criminal history or whether there is other information which suggests they may not be of good character;

* according procedural fairness to the applicant where there is credible, relevant, adverse information on their character ...

* considering the full circumstances relating to the relevant matters and evidence of the applicant's behaviour since then. Factors to be considered include, but are not limited to, those in the following paragraphs."

53. He summarised by submitting that it had been presumed that the Applicant would be of "good character", but that his record in Yugoslavia, Italy and elsewhere had indicated he was not. He submitted that Mr Buljeta had failed to disclose offences (T9 and T25), and used aliases. Mr Mullins referred to the criminal convictions in Italy in 1981 and 1992 with their resultant prison terms as serious offences.

54. Referring me to Clause 5.4.5 of the Guidelines, Mr Mullins noted that these referred to breaches of the law of another country, and submitted that Mr Buljeta had proceedings pending in Italy (Exhibit R2). He detailed other offences such as Mr Buljeta being arrested in Genoa in 1996 for receiving stolen goods, being convicted in Italy and being expelled in 1991. Referring to Exhibit R2, he also submitted that Mr Buljeta was under suspicion for fraud in Vienna, and for smuggling and false identities in Italy. The Respondent conceded that the Applicant's offences in the 1960's and 1970's were committed a long time ago, and not as serious as the more recent ones. However Mr Buljeta's whole history, Mr Mullins submitted, was one of continual disregard for the law. His behaviour had deteriorated over the years rather than showing improvement, he submitted. In that regard Mr Mullins drew my attention to the fact that there were mitigating circumstances which could be taken into account in appropriate cases, (Clause 5.4.12 of the Guidelines), but that these did not apply in Mr Buljeta's case.

55. I was mindful that Clauses 5.4.12 and 5.4.13 of the Citizenship Instructions indicated there were mitigating circumstances where crimes committed by the Applicant at a young age could be given less weight depending on the nature of the crime and the Applicant's subsequent record. In Clause 5.4.13 it was noted that a person's previous behaviour was relevant in assessing character, but that the behaviour and reputation at the time of the decision had the greatest relevance. Extenuating circumstances, which could be considered, would also be temporary psychological disturbance, and effects of medication.

56. In summary Mr Mullins submitted that I not accept Mr Buljeta's evidence regarding his stated belief that the document at Exhibit A3 was valid for other countries in addition to the six therein listed. He submitted I take into account the fact that Mr Buljeta had used many aliases and on his own admission, obtained false passports on many occasions.

THE TRIBUNAL'S DELIBERATIONS

57. I then turned to consider all the evidence, submissions, and case law to consider whether Mr Buljeta satisfied the "good character" requirement of section 13(1)(f) of the Act.

58. I was mindful in doing so that there is case law which has established that the Administrative Appeals Tribunal should follow publicly declared Ministerial policy or Departmental Guidelines unless there is some good reason not to. (Drake v Minister for Immigration and Ethnic Affairs (1979)2 ALD 60; Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. I was satisfied that the instant case was not one in which a departure from either guidelines or policy was appropriate.

59. In this respect, I noted that the Court found in Drake (supra) that while the Tribunal is free to apply the Minister's policy or not, in reaching the correct or preferable decision in each case, that policy can furnish assistance in arriving at the preferable decision. The Court stipulated that any departure from the policy should be made cautiously and sparingly, particularly, if the policy had been scrutinised and approved by Parliament.

60. The Court in Drake (supra) outlined the process the Tribunal should follow in cases reviewing the exercise of the discretionary power of the Minister, and held that where the Minister has adopted a general policy to guide him or her in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful, or unless its application tends to produce an unjust decision in the circumstances of the particular case.

61. Therefore, in light of the above, I am minded to consider the Citizenship Instructions insofar as they relate to the issue of "good character" in reaching a decision as to whether the Applicant meets the requirement in section 13(1)(f) of the Act.

62. I was mindful that the Citizenship Instructions at Clause 5.4.2 outline what constitutes "good character" as follows:

"5.4.2 The term 'good character' is not defined in the Act, so decision makers should be guided by the ordinary use of the words in making assessments. As a matter of policy, an applicant may be presumed to be of good character unless there is evidence to the contrary. In most cases, such evidence would be in the form of a serious criminal record, however, general conduct and associations may also be relevant."

63. I was mindful further Matthews J in the decision of Peterson v Minister for Immigration and Multicultural Affairs (AAT 13432, 6 November 1998), held that it was well settled that the words:

" 'good character' refer to the enduring moral qualities of a person, and not to the person's fame or reputation in the community."

64. In this respect, I noted that Clause 5.4.10 to 5.4.15 of the Citizenship Instructions require the decision maker to consider extenuating circumstances in respect of the commission of a crime by the Applicant. Specifically, Clause 5.4.11 provides:

"Consider whether there were any extenuating circumstances relating to the crime being committed ... The onus is on the applicant to provide evidence supporting a claim of extenuating circumstances."

65. I noted Mr Buljeta's argument that he had to survive without being able to return to Yugoslavia, and accordingly over the years, adopted false identities and passports as he could obtain them. He claimed that his commercial activities were legitimate, and that he dealt in precious stones. However, the many charges and convictions and time spent in jail, as listed above, did not convince me to the requisite standard that he was within the law on each occasion. In fact I was satisfied to the requisite standard that Mr Buljeta lived by deception and false identities and passports, as he admitted. Where documents before the Tribunal indicated he had been convicted, (Exhibits R2, and R3), I was satisfied that this was as stated. I did not accept Mr Buljeta's reliance on Exhibits A4 and A5, and noted that charges were still pending in Italy from the 1996 arrest.

66. I was mindful however that mitigating circumstances can be taken into account when considering "good character". One of the mitigating circumstances in the Citizenship Instructions appears in Clause 5.4.12 and states as relevant:

"Crimes committed by the Applicant at a young age may be given less weight depending on the nature of the crime and the applicant's subsequent record. It may be considered that the person has matured and become more law-abiding than as a youth, and that offences from that period in their life are less indicative of their current character than their actions as an adult."

67. There was however no question from the evidence before me that Mr Buljeta did not adhere more to the law as he grew older. Even though Mr Buljeta tried to give explanations and denied what the records at Exhibits R2 and R3 before the Tribunal indicated, I noted that he had criminal charges dating back to 1947 in Yugoslavia, several in Australia between 1960 and 1965, and many in other countries. He left Australia in 1973 aged 41 and embarked on a life of travel during which he was charged and convicted many times, including in Italy, in 1996 (matter still pending). There was no question that Mr Buljeta's criminal record did not improve with age. I was mindful of his argument that some of the records were inaccurate, in particular his assertion that he was in hospital in Rome in 1994 suffering throat cancer when records before the Tribunal indicated he was in Switzerland (Exhibit R3). On a closer reading of Exhibit R3, however, the documents stated that Mr Buljeta was known to the authorities in Switzerland in 1994, not that he was present in that country at that time. As relevant, I quote from Exhibit R3:

"On behalf of the above mentioned person (Buljeta and aliases), he is known to our files in 1994 in Zurich for suspicion of international traffic with cars between Italy-Switzerland and France-Germany, as well as for suspicion of illegal trade with weapons, false money, narcotics."

68. I also considered other Clauses of the Citizenship Instructions; Clause 5.4.10 deals with the situation of a one-off occurrence to be considered "out of character" with the person concerned. Mr Buljeta's record could certainly not be characterised as a one-off. He was clearly a multiple offender over many years and in many countries.

69. I considered what mitigating circumstances might apply in Mr Buljeta's case, noting his stated fear of the Ustashi movement. I could not find that the Ustashi, if indeed they had anything to do with Mr Buljeta, had anything to do with him over the 25 years subsequent to him leaving Australia in 1973, and on his return in 1998.

70. In finally reaching a determination as to whether the Applicant displayed the requisite degree of "good character" pursuant to section 13(1)(f) of the Act, I have taken into account the words of Clause 5.4.13 of the Citizenship Instructions and noted that:

"A person's previous behaviour as evidenced by a criminal record is relevant in assessment of character, but it is the person's behaviour and reputation at the time of the decision that has greatest relevance. Decision-makers must be satisfied that a person is of good character at the time of decision. A reasonable amount of time will need to have passed since the applicant has been free of obligation to the court to establish a pattern of good behaviour and thus justify a conclusion that a person is now of good character."

71. In finally considering Mr Buljeta's situation, I preferred the submissions of the Respondent which emphasised that the nature of the offences committed by Mr Buljeta which led to his convictions were sufficiently serious to find that he was not of "good character" pursuant to section 13(1)(f) of the Act.

72. Therefore, I was not able to find that the Applicant meets the test of "good character" pursuant to section 13(1)(f) of the Act, and hence to exercise the discretion to set aside the decision of the Respondent to revoke the grant of Mr Buljeta's Australian Citizenship.

DECISION

73. The Administrative Appeals Tribunal affirms the decision of the Minister of Immigration, and Multicultural and Indigenous Affairs who, on 31 December 2001, revoked the grant of Australian Citizenship made to Mr Franjo Buljeta on 14 September 2001 on the basis that he was not of "good character" pursuant to section 13(1)(f) of the Australian Citizenship Act 1948.

I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger - Senior Member

Signed: .....................................................................................

Ms H Kavadias - Associate

Date of Hearing 24 September 2002

Date of Decision 8 January 2003

Applicant Self Represented

Solicitor for the Respondent Mr A Mullins, Blake Dawson Waldron