Aboubakar Kabamba and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) - [2024] AATA 89

Aboubakar Kabamba and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 89 (31 January 2024)
Division:GENERAL DIVISION
File Number(s): 2022/6932
Re:Ramazani Aboubakar Kabamba
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member K Millar
Date:31 January 2024
Place:Adelaide

The decision under review is affirmed.
............[sgnd]............................................................
Senior Member K Millar
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – refusal of citizenship – whether applicant is of good character under section 21(2)(h) of the Australian Citizenship Act 2007 (Cth) – applicant’s criminal history considered – applicant’s character references considered – recent convictions and repeated driving offences – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
CASES
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Irving v Minister for Immigration Local Government and Ethnic Affairs (1996) 68 FCR 422
VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230
REASONS FOR DECISION
Senior Member K Millar
Date: 31 January2024
APPLICATION FOR REVIEW

Mr Kabamba is a citizen of the Democratic Republic of Congo who came to Australia on 26 January 2010 and is a permanent resident of Australia.
On 17 December 2020, Mr Kabamba applied for Australian citizenship. His application was refused by a delegate of the Minister on 12 August 2022 because the delegate was not satisfied that Mr Kabamba was of good character. This was to a large degree due to his criminal history, with his most recent conviction on 23 November 2021 for the possession of a controlled weapon.
Mr Kabamba has applied for a review of this decision and appeared before the Tribunal on 17 January 2024. The Tribunal also took oral evidence from his brother and his sister-in-law.
LEGISLATIVE FRAMEWORK
Mr Kabamba applied for Australian citizenship by conferral under s 21 of the Australian Citizenship Act 2007 (Cth) (‘the Act’). If he meets the requirements in s 21(2) of the Act, he is eligible for Australian citizenship. Of the provisions in s 21(2) of the Act, the delegate found that Mr Kabamba did not satisfy paragraph 21(2)(h), which requires that the applicant is of good character at the time of the Minister’s decision on the application.
This is an assessment of Mr Kabamba’s character in the time to the date of this decision.[1] The test is that the Tribunal is ‘satisfied’, not anything more such as ‘comfortably satisfied’.[2]
[1] BOY19 v Minister for Immigrationand Border Protection [2019] FCA 574; VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230.
[2] BOY19 v Minister for Immigrationand Border Protection [2019] FCA 574.
Assessing if a person is of good character is an assessment of their enduring moral qualities, and not the good standing, fame or repute of the person in the community.[3]
[3] Irving v Minister for Immigration Local Government and Ethnic Affairs (1996) 68 FCR 422.
OFFENDING HISTORY
The Minister relies on Mr Kabamba’s offending history and other interactions with police to establish a lack of satisfaction that he is of good character.
Possession of a controlled weapon
Mr Kabamba’s most recent conviction on 10 December 2021 is for the possession of a controlled weapon, for which Mr Kabamba was fined $750.
The police facts state that Mr Kabamba got into an argument with three males outside his home address, and repeatedly told them to leave the area. During the argument, he produced a machete and waved it around in a threatening manner while chasing the males. The police facts state that two of the males fled and one remained. On the police arriving, Mr Kabamba was still waving the machete around and yelling at the remaining male who was blocked between Mr Kabamba and a wall.[4]
[4] Ex ST, Supplementary T Documents.
Mr Kabamba said he knew two of the males. He met one through a forklift driving course. They would come to his house to smoke in the garage, and he did not want them there. He said he had called police in the past, but by the time the police arrived they had left. On this occasion he did not call the police. The person who called the police is an ex-boxer who carries a taser, and Mr Kabamba said he could not have cornered him against a wall. Another of the men carries a knife. This was offered as an explanation as to why Mr Kabamba went out of the house with a machete. Mr Kabamba said he dropped the machete when told by the police, and they put him on the ground and handcuffed him.
I accept the police facts as recorded at the time, and find that Mr Kabamba had possession of a machete, and that he was using the machete in a threatening manner towards two others.
Driving offences
Mr Kabamba has been convicted of the following driving offences:
·     Driving with a prescribed illicit drug on 23 November 2021, fined $500
·     Use of an unlicensed vehicle and no authority to drive (never held) on 26 October 2018, fined a total of $300
·     No authority to drive (expired overseas/interstate) on 18 February 2016, fined $100
·     Exceed 0.08g alcohol per 100ml of blood on 18 February 2016, fined $500 and drivers license disqualified 6 months[5]
[5] Ex T, T Documents.
Whilst the first occasion on which Mr Kabamba drove with an expired overseas licence may be understandable, the second occasion is less so. Mr Kabamba said his partner at the time wanted him to pick her up. Similarly, his repeat offence of driving under the influence does not support the notion that he has changed his behaviour in response to being convicted of an offence, or that he has taken care not to repeat the behaviour.
Breach of orders and disorderly behaviour
Mr Kabamba has been convicted of:
· Disorderly behaviour in public on 10 July 2018 and fined $500; and
· Breach of police order on 16 January 2015 and fined $300 with a conditional release order for 6 months.[6]
[6] Ibid.
There is an earlier offence where no conviction was recorded of fail to leave licensed premises on 28 August 2012, with a recognisance of $150 and a good behaviour period of 6 months.[7]
[7] Ibid.
According to the police facts, the breach of the police order arose out of circumstances where Mr Kabamba was separated from his wife. Police were called when he was yelling at her through a closed glass sliding door. Police removed him to his sister’s house and issued a 24-hour police order. They were later called to a house where he was found shouting and being verbally aggressive to his sister. He was removed from his sister’s house and issued a second police order. He asked to be taken to the airport so he could return to Queensland but was later again located at his wife’s location in breach of the order. He explained to police that he wanted his visa. He was not described as violent at that time but rather as very emotional. Police described both Mr Kabamba and his partner as being very emotional and affected by alcohol.[8]
[8] Ex ST, Supplementary T Documents.
These events are now over nine years ago, and there are no other breaches of orders or difficulties reported in the relationship with his ex-partner. Mr Kabamba’s son from this relationship, who is now an adult, lives with him.
Other relevant reports
Another interaction with police occurred in 2014 when police were called to the house where Mr Kabamba was living with his wife. The attending officers report that Mr Kabamba had told his wife the relationship was over while throwing items around the house and damaging a television. His wife told the officers she had been kicked in the leg and that she was concerned about the loss of make-up and other property but did not want to pursue the matter. Mr Kabamba said his ex-partner had smashed the windscreen of his car. He denied kicking his ex-partner in the leg but said he did damage the television. This is now occurred 10 years ago.[9]
[9] Ibid.
Mr Kabamba’s offending history commenced within 2 years of his arrival in Australia, and his initial driving offence could be explained as a lack of knowledge of the Australian system. However, his offending has continued, and he again drove without a license, and under the influence of an illicit drug, when he had previously been convicted of driving unlicensed and driving under the influence of alcohol. His offending has escalated over time since his arrival with the possession of a controlled weapon.
The breach of the police order and the events around the end of his relationship with the mother of his children are now approximately 10 years ago, and there have not been other offences or reports relating to this or any other relationship. If this series of events had been in isolation and he had not offended since it may not have affected my current assessment of his character. However, he has since been convicted of disorderly behaviour which also involved being intoxicated, driving offences involving drugs and alcohol, and possession of a prohibited weapon.
INFORMATION FROM MR KABAMBA
Mr Kabamba provided character references from Katambwe Mwanangoi, a former vice president of the Congolese Community of WA, who states that Mr Kabamba has been known in the local community to be kind, earnest, hardworking and trustworthy and has established himself as a pillar in the community.[10] Ms Hyppolyte Yousef Ngoma states that he is a hard worker, and that Australia would benefit from having him in the community. Mr Kabamba’s medical practitioner provided two character references stating he is well-mannered and has had no issues with doctors or staff.[11]
[10] Ex T, T Documents.
[11] Ibid.
In her reference, president of the Congolese Community of WA Mrs Virginie Gesse states that she understands Mr Kabamba has struggled at times with integration, and she is aware of his criminal record. She states that he has recently been participating in personal development community programs and youth development activities. Mrs Gesse states that his good character has been proven by his dedication to the advancement of their community and in obtaining a job.[12] Mr Kabamba could not identify his contribution to the community other than assisting as requested. He could not provide examples other than sweeping floors or moving chairs when someone asked him to and visiting community members who have had a death in the family. He did not identify programs he has been involved in with the Congolese community.
[12] Ibid.
Further character refences from Ms Lara Hamilton and his employer Mr Derek Prince state that Mr Kabamba is respectful, hard-working, compassionate and a good employee.[13] Mr Kabamba has been working for the last 4 – 5 months and is doing well in his job.
[13] Ex A1; Ex A2.
Mr Kabamba’s brother and sister-in-law have been living with him for the last few weeks and say they have noticed a difference in him, in particular that he drinks less alcohol. They both also said most of his time is occupied with work.
The statements he provided and the witnesses who appeared provide evidence in support of their view of Mr Kabamba as a person who is hard working, well-mannered, a good employee and who has shown understanding, empathy and compassion. I do not doubt this is the case. His circumstances appear to have changed with his son coming to live with him.
CONCLUSION
Mr Kabamba’s relatively recent convictions and his aggressive conduct towards others, as well as the repeated nature of his driving offences, mean that I am not satisfied he is of good character. As I am not satisfied that he is of good character, he does not meet s 21(2)(h) of the Act, and the decision must be affirmed.
If Mr Kabamba can show a period without offending and continues to show he is a good member of the community he may be considered to be of good character in the future, and he has certainly shown attributes of being hardworking, well-mannered and compassionate that are in his favour. He can apply for Australian citizenship again in the future.
Mr Kabamba said that he has been seeking Australian citizenship because he wants to visit his mother who is ill. He may like to seek the advice of a lawyer or migration agent on his ability to travel on his current visa, and the implications if he does travel.
DECISION
The decision under review is affirmed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Millar.

   [sgnd]
………………………………………

Associate
Dated: 31 January 2024

Date of hearing: 17 January 2024

Advocate for the Applicant:
Self-represented

Advocate for the Respondent: Grace Mickle,
Minter Ellison

Date of hearing:	17 January 2024
Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	Grace Mickle, Minter Ellison