Abiyanki Abraham Apire and Minister for Immigration and Border Protection
[2014] AATA 193
[2014] AATA 193
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/4657
Re
Abiyanki Abraham Apire
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 4 April 2014 Place Perth The decision under review is affirmed.
...(Sgd) Mr S Webb....................
Mr S. Webb, Member
CATCHWORDS
CITIZENSHIP – permanent resident – application for citizenship – character test – multiple minor driving offences – pattern of offending behaviour - disregard for the law – not a long period since last offence - decision affirmed
LEGISLATION
Australian Citizenship Act 2007, ss 21, 24
CASES
Re Wang and Minister for Immigration and Border Protection [2014] AATA 89
SECONDARY MATERIALS
Australian Citizenship Instructions
REASONS FOR DECISION
Mr S. Webb, Member
4 April 2014
Abiyangki Apire arrived in Australia in 2005. He is a permanent resident. On 17 October 2011, he applied for conferral of Australian citizenship, but he failed to provide sufficient documentation and his application was rejected. He applied for review. In the course of proceedings, he provided additional information and, by agreement, the matter was remitted to the Minister for further consideration. The Minister affirmed the original decision, finding that Mr Apire does not satisfy the character test as he has 10 convictions for traffic offences.[1] The proceedings before the Tribunal resumed.
[1] Exhibit 2.
The issue to be decided is whether Mr Apire satisfies the eligibility requirements for conferral of Australian citizenship set out in s 21(2) of the Australian Citizenship Act 2007 (the Act) for the purposes of determining his application under s 24. The eligibility criteria are –
21 (2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister’s decision on the application.
The Minister’s decision on remittal turns on the character test in s 21(2)(h), and it is to this test that attention was directed in the hearing.
Facts
Mr Apire is from Sudan. He is 25 years old. Documents confirming his identity are in Exhibit 3. He provided a written statement (Exhibit 4) and gave oral evidence.
Mr Apire has the following criminal record[2] -
[2] Exhibit 1, pages 24 to 29.
Offence time & date Offence Conviction date Penalty 8.45am
6 June 2007
Drive Contrary to Learner’s Permit 1 August 2007 Fine: $250 3.17am
13 January 2008
Excess 0.02% alcohol – reading 0.045267% - Probationary License 13 February 2008 Disqualified: 3 months; concurrent fine: $150 10.55am
4 July 2008
No authority to drive – never held and disqualified 5 August 2008 Disqualified: 3 months; concurrent fine: $100 5.20pm
4 July 2008
No authority to drive – never held and disqualified 5 August 2008 Disqualified: 3 months; concurrent fine: $150 4 July 2008 Unlicensed vehicle (owner/driver) 5 August 2008 Fine: $100 2.00am
26 May 2009
Excess 0.02% alcohol – reading 0.025% - Probationary License 29 May 2009 Disqualified: 3 months; concurrent fine: $360 2.00am
26 May 2009
No authority to drive – never held and disqualified 29 May 2009 Disqualified: 3 months; concurrent fine: $400 5 minutes after being returned to his vehicle - 26 May 2009 No authority to drive – never held and disqualified 29 May 2009 Disqualified: 3 months; concurrent fine: $600 12.55pm
28 December 2011
No authority to drive – disqualified/suspended 30 January 2012 Disqualified: 9 months; cumulative fine: $500 10.26pm
25 July 2012
No authority to drive – never held and disqualified 24 September 2012 Disqualified: 9 months; cumulative fine: $1000
In the application for citizenship Mr Apire lodged on 17 October 2011, he answered ‘No’ to the question ‘Have you been convicted or found guilty of, ANY offences overseas or in Australia? (Include all traffic offences which went to court including offences declared in your permanent residence application and any ‘spent’ convictions)?’. Even though the grammatical construction of this question (or questions) is challenging, Mr Apire did not assert that he failed to understand it, rather that he did not read it correctly – he told me that he thought it related to offences overseas, and he did not notice the reference to Australia.
Mr Apire told me that he has been in casual employment for several years, performing ‘pick and pack’ duties for Coates and Woolworths at the International Terminal of Perth Airport. He resides some distance away in Mirrabooka and informed me that he cannot get public transport from his home to work. While he could take a bus from near his home to Perth City and another bus from the City to the Domestic Airport, he would then have to walk for at least 45 minutes to his place of employment in the International Terminal. He told me that he tried this once and it took over three hours, so he did not attempt it again.
Since 2007, Mr Apire has undertaken educational courses. He has obtained a Diploma in IT Networking from the Horizon Training Centre, and he is presently enrolled at University.
For several years, Mr Apire has been active in community organisations. He was instrumental in establishing an amateur soccer club within his community, the Jaguar Football Club, in order to field teams (3 boys’ teams, with one team for girls due to commence soon) in leagues operated by Football West. He is presently Secretary of this Club.
He told me that he is also active in the Obbo Community Association, a national organisation of Sudanese people from his tribal group, and holds the office of State Secretary. It appears that this group meets once each month on a Sunday and is active in education-based activities and fund-raising.
The character test
Mr Apire relies on references from Mr Sebit Gama[3], Mr James Taban[4] and Ms Katie Griffin.[5] Each of these people gave oral evidence. He also relies on the statement he provided in Exhibit 4.
[3] Exhibit 7.
[4] Exhibit 6.
[5] Exhibit 5.
When determining whether a person is of good character for the purposes of the Act, Chapter 10 of the Australian Citizenship Instructions (the Instructions) is useful. As can be seen, the term ‘good character’, which is not defined in the legislation and is to be given its ordinary meaning, refers to ‘the enduring moral qualities of a person, and is an indication of whether the person is likely to uphold and obey the laws of Australia’[6], ‘and not the good standing, fame or repute of that person in the community’.[7]
[6] Australian Citizenship Instructions at 10.1.2.
[7] Ibid, at 10.3.1.
The Minister drew particular attention to the Instructions that –
10.3.4 An applicant who is of good character
…
An applicant of good character would:
…
- be truthful and not practise deception or fraud in their dealings with the Australian Government…
…
- not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without a licence or insurance)
…
In the Minister’s submission, Mr Apire falls short of these indicia of good character.
In view of his criminal history, it is quite clear that Mr Apire has a pattern of disobeying traffic laws over an extended period. He has repeatedly driven a motor vehicle without a current driver’s license; he has driven a motor vehicle while under the influence of alcohol; and he has driven a motor vehicle without current registration. He has been charged and convicted of multiple offences as a result. Behaving in this manner, he has placed his passengers (including children) and other road users at risk of harm.
Even though each offence is not properly classed as a ‘serious offence’ under 10.5.2 of the Instructions, rather meeting the description of a ‘minor offence’, to my mind driving a motor vehicle without a license while under the influence of alcohol is a serious matter that should not be trivialised or passed off too lightly. In this regard, I respectfully agree with what the Tribunal said in re Wang and Minister for Immigration and Border Protection[8] at [7] – laws to protect users of the road go to the essential safety of the community. Behaviour of this kind is not consistent with Australian community values. Mr Apire has two such offences.
[8] [2014] AATA 89.
I do not accept his assertion that he drove only because it was necessary for him to do so in order to keep his job, or because there was no other alternative. By his own account, he owned a number of motor vehicles which he drove “knowing that I was breaking the law”[9] and in flagrant disregard to court orders disqualifying him from doing so.
[9] Exhibit A4.
As regards the character witnesses, Ms Griffen told me that she was aware of Mr Apire’s offending behaviour and his criminal convictions, but steadfastly maintained that he is of good character. She pointed to Mr Apire’s activities in the community and the assistance and support he has provided her as evidence of his good character.
Mr Gama and Mr Taban were ready to praise Mr Apire’s community activities, especially in respect of the Jaguar Football Club. But Mr Gama and Mr Taban were not aware of Mr Apire’s full record of offences and convictions. It appears that Mr Apire had not elected to disclose this. Nonetheless, both Mr Gama and Mr Taban thought that Mr Apire had learned from his mistakes and he had not offended recently.
I accept that Mr Apire undertakes good works within his community, and he struck me as a well-motivated person in that regard. Those behaviours point to good qualities in his character.
But his record of repetitive offending, albeit not involving serious deceit or crimes occasioning actual harm, points to another aspect of his character which has led him to flout Court orders, disregarding the law and any potential harm that may result from his behaviour. It is this aspect of his character that is revealed by his offending behaviour on 28 December 2011 and 25 July 2012, after he lodged the application for citizenship that is at the heart of these proceedings.
While some time has passed from the date of his last conviction, the period is not long and Mr Apire has not yet paid out his fines and obtained a driver’s license. He told me that he shares a house with friends who have a car that he can borrow to drive to the local shop for groceries, but he has not done so since his last offence. That may be so, and Mr Apire may be on a path to reform his previous bad conduct. If that is correct, and if he does not resume his previous pattern of poor behaviour for an extended period, it may weigh in his favour – the longer the period without offence, the firmer the platform on which a finding of good character may be made.
When asked how he felt about his criminal record, Mr Apire informed me that he felt sad and remorseful, as his record prevented him from doing things he wants to do and it has prevented him from obtaining a job in the mines that requires a driver’s license. It is troubling that Mr Apire’s remorse is for himself, without regard to the laws and Court orders he has failed to obey, and the people he has placed at risk. Whether this lack of insight is attributable to immaturity that may be addressed as he ages or it has a deeper root, I cannot say.
In either case, I am satisfied that Mr Apire’s lack of insight weighs against a finding of good character at this time.
This case does not simply turn on Mr Apire’s traffic offences, although those are concerning in themselves. The important point is that his flagrant disregard for law and for community safety, and his lack of insight, point to aspects of his character that are not consistent with a person who is of ‘good character’ for the purposes of the Act.
In sum, considering all of the relevant circumstances and weighing the present evidence, I am unable to make a positive finding of good character for Mr Apire. For this reason he does not presently satisfy s 21(2)(h) of the Act and no positive decision can be made under s 24(1). It follows that the decision under review will be affirmed.
Mr Apire may make a further application for citizenship in the future. He strikes me as a young man who has many good qualities inherent in his character. It is most unfortunate that he has allowed these to be obscured by his past offending behaviour. He should not be disheartened by this decision. To my mind, the qualities that his referees identify in his character, which are also apparent to me, may stand him in good stead in the future if he walks away from his past offending conduct and he develops a more mature appreciation for the rule of law and the values of the Australian community, especially in relation to community safety.
Decision
The decision under review is affirmed.
I certify that the preceding 28 (twenty -eight) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member ..(Sgd) T Freeman............
Associate
Dated 4 April 2014
Date of hearing 28 March 2014 Applicant In person Advocate for the Respondent Ms S Kikkert
Department of Immigration and Border Protection
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