Abourbakar Kabamba and Minister for Immigration and Border Protection (Citizenship)

[2016] AATA 832

Abourbakar Kabamba and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 832 (24 October 2016)

Division	GENERAL DIVISION
File Number	2016/0044
Re	Ramazani Abourbakar Kabamba
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Ms A Goodier, Member
Date	24 October 2016
Place	Perth

The Tribunal affirms the decision under review.

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Member

CATCHWORDS

CITIZENSHIP – good character – whether Applicant satisfies the legislative requirement to be shown to be of good character – previous convictions – family violence – traffic convictions – whether any mitigating factors or explanations outweighs the behaviour – decision affirmed

LEGISLATION

Australian Citizenship Act 2007 – s 21 – s 21(1) – s 21(2) – s 21(2)(h) – s 24(1) – s 24(1A)

CASES

Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 68 FCR 422

Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634
Zheng and Minister for Immigration and Citizenship [2011] AATA 304

SECONDARY MATERIALS

Australian Citizenship Policy 1 June 2016

REASONS FOR DECISION

Member A Goodier

24 October 2016

INTRODUCTION

1. Mr Aboubakar Kabamba arrived in Australia on 28 January 2010 as a refugee and currently holds a Class XB subclass 200 permanent visa.  He is a citizen of the Democratic Republic of Congo.

2. Mr Aboubakar Kabamba applied for Australian citizenship on 4 November 2014 under s 21 of the Australian Citizenship Act 2007 (the Act).

3. On 12 November 2015, a delegate of the Minister refused Mr Aboubakar Kabamba’s application on the basis that he had not established that he was of good character at that time.  

4. On 5 January 2016, Mr Aboubakar Kabamba applied to this Tribunal for a review of the delegate’s decision.

   RELEVANT LEGISLATION AND ISSUES

5.       Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Pursuant to s 24(1) of the Act, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

6.       Section 24(1A) of the Act states that the Minister must not approve a person becoming an Australian citizen unless the person is eligible to become an Australian citizen under s 21(2), (3), (4), (5), (6), (7) or (8) of the Act.

1. The general eligibility criteria for a person over 18 years of age to become an Australian citizen are set out in s 21(2) of the Act. Relevantly, s 21(2)(h) provides that the Minister must be satisfied that the person is of good character at the time of the Minister’s decision on the application.

2. The issue before the Tribunal is whether it is satisfied that Mr Aboubakar Kabamba is of ‘good character’ in accordance with s 21(2)(h) of the Act.

   Definition of good character

3. The term ‘good character’ is not defined in the Act. Guidance can be found in Chapter 11 of the Citizenship Policy. The role of the Citizenship Policy is to offer guidance on the interpretation of the Act. Although the Tribunal is not bound to strictly apply the Citizenship Policy, it is government policy and should be considered unless there are cogent reasons not to do so.[1]

   [1] Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No. 2) (1979) 2 ALD 634

4. As to the definition of good character, the Citizenship Policy cites the decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 68 FCR 422 at 431-432:

   Unless the terms of the Act and Regulations require some other 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 whilst the latter is a review of subjective public opinion...

5. The Citizenship Policy states the phrase ‘enduring moral qualities’ encompasses concepts of characteristics which have been demonstrated over a very long period of time; distinguishing right from wrong; and behaving in an ethical manner, which includes conforming to the rules and values of Australian society. This broad definition of the good character requirement looks at the essence of the applicant and their behaviour being a manifestation of essential characteristics.

6. In considering the Citizenship Policy the Tribunal has taken into account that it refers to the decision of this Tribunal in Zheng and Minister for Immigration and Citizenship [2011] AATA 304 at 120 in which the Tribunal said:

   In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do.

7. The Citizenship Policy sets out a ‘non-exhaustive’ list of characteristics of good character. A person of good character would respect and abide by the law in Australia and not cause harm to others through their conduct.

8. The Tribunal is then required to decide whether there are any mitigating factors and/or whether the explanation provided by the applicant outweighs the behaviour in question. As stated in the Citizenship Policy, the Tribunal is to weigh up certain factors, applying community standards.

9. Mitigating factors relevant to this matter include whether a person of good character would have behaved the way Mr Aboubakar Kabamba did, the amount of time that has elapsed since offending, whether Mr Aboubakar Kabamba has demonstrated that he can uphold and obey the law, whether he has accepted responsibility and shown remorse for his conduct, and any extenuating circumstances relating to the offences. 

   Offences and evidence

10. Mr Aboubakar Kabamba’s criminal history is as follows:

Court	Date	Offence	Result
Cairns Magistrates Court	28/08/2012	Failure to leave licensed premises	No conviction recorded. Recognisance $150. 6 month good behaviour period
Armadale Magistrates Court	16/01/2015	Breach of Police order	6 month conditional release order, $300 undertaking. Spent conviction
Perth Magistrates Court	18/02/2016	No authority to drive	Fine: $100. Licence disqualified 3 months
Perth Magistrates Court	18/02/2016	Driving with excess 0.08g/100ml	Fine: $500. Licence disqualified for 6 months concurrent

1. Mr Aboubakar Kabamba provided copies of the conditional release order, the WA Police Evidence Matrix and the Court transcript in relation to the breach of police order.

2. The sentencing remarks show that Mr Aboubakar Kabamba submitted that he returned to the property to retrieve his personal belongings and the Court accepted that there was a degree of naivety in relation to Mr Aboubakar Kabamba breaching the police order.

3. There is no suggestion of violence in relation to the breach of police order offence. On the night that the police order was issued, as well as being called to his partner, Ms Enobie’s property twice (once when the police order was issued and once when it was breached), police were also called to Mr Aboubakar Kabamba’s sister’s property, where he was issued with another police order. 

4. According to the documents tendered by the respondent[2], the breach of police order refers to incidents that occurred on 25 December 2014 and refer to Mr Aboubakar Kabamba and Ms Enobie drinking and being intoxicated. The parties were arguing and Mr Aboubakar Kabamba was yelling through a glass door. The police issued a 24 hour police order and conveyed him to his sister’s home. The police were called to the sister’s home just after 1am and when they arrived there was a loud disturbance coming from the house. The documents indicate that Mr Aboubakar Kabamba was shouting and being verbally aggressive to his sister and continued to be aggressive and was physically restrained and handcuffed by the attending police officers.  No party was injured and there was no sign of property damage. Mr Aboubakar Kabamba was issued with a further police order prohibiting him from attending the address of his sister or contacting his sister.  He was taken to the airport at his request. At approximately 4.30am on 25 December 2014, the police again attended Ms Enobie’s residence where Mr Aboubakar Kabamba had returned. He was not violent at this point in time but was very emotional and wanted Ms Enobie to hand him his Australian visa. The police report notes that all persons were affected by alcohol and not making sense. Following this incident Mr Aboubakar Kabamba was charged with breach of police order.

   [2] Exhibit 6

5. Mr Aboubakar Kabamba told the Tribunal that he was under the influence of alcohol at the time of the incident and Ms Enobie had also been drinking. He described the incident as one of quarrelling with his partner and that these conversations get heated but he does not physically threaten people. He does not usually yell or shout but is about 15% louder than normal. When pointed out by the respondent that the person who called the police indicated that he was being aggressive, smashed a window and there were weapons present, he responded that he opened but did not smash the window to enter the house to get his wallet and there were no weapons involved.  At his sister’s house, while he did not drink anything further, she started to swear and say horrible things to him such that he became angry and expressed his anger by verbally speaking to those present in the house.  When the respondent put to Mr Aboubakar Kabamba that on both occasions, despite his claims to have been only speaking 15% louder when speaking to Ms Enobie and only verbally speaking at his sister’s home, someone was concerned enough to call the police. Mr Aboubakar Kabamba’s response was that Africans tend to be more dramatic. Mr Aboubakar Kabamba initially denied there had previous domestic violence incidents as referred to in the police reports before recalling an incident when he called the police because they were having an argument and Ms Enobie was breaking things. He could not recall any other incidents. Mr Aboubakar Kabamba indicated to the Tribunal that he is not sure why he was penalised as it was just a fight between him and his partner and friends called the police.  He indicated that he was aware what the 24 hour police order meant and that he had to stay away from Ms Enobie’s house but he needed his wallet so he went back and opened the window to take his wallet.

6. Mr Aboubakar Kabamba explained that he did not declare his conviction for failure to leave licenced premises in Cairns when he completed his application for citizenship as he simply did not think of it at the time. 

7. In relation to the offences that occurred in January 2016, Mr Aboubakar Kabamba said that he had gone to pick up Ms Enobie when she had been having a few drinks. He claims that the alcohol he consumed on that occasion was limited to two beers and that he decided to drive because he was not far from home. However, his blood alcohol reading was 0.085g/ml, which does not appear to be consistent with drinking only two beers. Earlier in the hearing he indicated that he had three small bottles on this occasion, but when the discrepancy was put to him, he claimed that his earlier reference to three small bottles was a reference to his alcohol consumption on the night of 25 December 2014 and not the night in January 2016.

8. Mr Aboubakar Kabamba initially suggested that he believed he had been driving on the authority of his Cairn’s learner’s permit but conceded later that he knew that he was unable to drive without a fully licensed driver in the car. The person who usually sat with him while he was learning to drive is his uncle who did not accompany him on 24 January 2016. He also indicated that he held a driver’s licence from Congo but that this had expired in 2016. Upon referring to the documents that he had provided to the Tribunal it was confirmed that his driver’s licence had expired on 5 January 2016, which is prior to the date of his offence. Mr Aboubakar Kabamba indicated that he was aware that he was driving without a valid licence.  He initially indicated that he had only driven alone on one occasion without a fully licensed driver accompanying him.  However, after it was pointed out that in his application form he indicated a prior conviction from a court for driving on a learner’s permit without anybody else in the car, he indicated that it happened in Cairns and that he had only one occasion in Perth and one occasion in Cairns. 

9. Mr Aboubakar Kabamba provided a statement commenting on the police charges in which he said:

   Coming from a refugee background, I didn’t understand many things about life style in Australia.

   But now that I am involved with Ruah Communities service, I am learning a lot about my obligations and rights being in Australia. Also being part of Christian community is helping me to learn how to become a better person in the wide community.

   Since February I have learned a lot and I am trying my best to apply all the teachings.

   I believe this is the best way for me to improve my relationship in the family as well as in the community.[3]

   [3] T15, pg 156

10. In his letter to the Tribunal, Mr Aboubakar Kabamba stated:

    ...I understand the actions I took towards my partner [on Thursday 25th of December 2014] were not the best; during the moment I did realize that it would have such an effect on my life. ... my partner and I both now realize what happened was wrong, we were both to blame. I have never been an aggressive nor violent man towards anyone in my life, I am not a fan of violence, I don’t believe in such actions, but I understand my actions on Thursday 25th of December 2014 were completely out of place. It was a mistake that should have been dealt with, with proper manner. I have been truly apologetic towards my partner and we are currently still together. I believe in second chances because everyone makes mistakes and I am truly sorry for (sic) I did. Since then I have not committed any crimes. I am a changed man, better father, better partner and definitely a better citizen. I have learnt so much from my mistake.[4]

    [4] Exhibit 2

    Character references

11. The Citizenship Policy states that:

    ...referee reports can shed light upon an applicant’s character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of good character.

12. The Tribunal also has regard to the relevant paragraphs in the Citizenship Policy that give advice regarding the level of weight to be given to references.

13. Mr Aboubakar Kabamba provided character references from:

    ·     Safi Mutambala, CaLD Community Mental Health Worker, Ruah Mental Health, which said that Mr Aboubakar Kabamba has been receiving mental health services on a weekly basis since February 2015 and has been well engaged with the Ruah community since his referral to them;

    ·     Gabriel Gomado, Senior Pastor, Believers Worship Centre Inc, which said that Mr Aboubakar Kabamba has been attending the evening French service since February 2015 and is trying his best to learn how to become a better person by using Christian values;

    ·     Dr Dumidi Gammanpila, Corfield Doctors Surgery, which said that Mr Aboubakar Kabamba and his family have been attending him for treatment since 31 May 2014 and that Mr Aboubakar Kabamba has been well-mannered during visits and that he has no concerns recommending Mr Aboubakar Kabamba as a decent citizen; and

    ·     Mushtaba Rafyee, Owner of Sena Auto Exports P/L stating that he is Mr Aboubakar Kabamba’s employer and pledges that he is a good citizen. He is always on time, never misses work and tends to get work finished in the accordance manner, is well mannered and behaved towards the writer and other staff. He has never seen Mr Aboubakar Kabamba show any kind of violence or assault acts at work nor has he heard of any related matters.

14. The character references from Mushtabe Rafyee[5] and Dr Dumdi Gummanpila[6] infer awareness of family violence allegations against Mr Aboubakar Kabamba. Dr Gummanpila’s letter gives little indication of any interaction between himself and Mr Aboubakar Kabamba  and does little to support his good character apart from showing that he has not treated members of Mr Aboubakar Kabamba’ immediate family for family violence injuries. The reference from Mr Rafyee generally supports Mr Aboubakar Kabamba as being a good employee who behaves appropriately in the workplace.

    [5] Exhibit 4

    [6] Exhibit 3

15. The character reference from Ruah[7] says nothing as to Mr Aboubakar Kabamba’s character but indicates he has been receiving assistance from their mental health services since February 2015. 

    [7] T12, pg 153

16. The character reference from Pastor Gomado[8] indicates Mr Aboubakar Kabamba has been attending the evening French service since February 2015 and is trying to learn how to become a better person by using Christian values.  He told the Tribunal at hearing that they talk about family violence regularly at Church and if the problem continues then they will speak to him on an individual basis.  He indicated he has attended Church regularly on a weekly basis and last attended about two weeks prior to the hearing.

    [8] T13, pg 154

    CONSIDERATION

17. Mr Aboubakar Kabamba was asked whether he had undertaken any rehabilitation or otherwise managed to reform his conduct in some way.  He indicated that he was involved with Ruah. However, the Tribunal found Mr Aboubakar Kabamba’s evidence about his continued involvement with Ruah and the assistance for his mental health that he was receiving vague. The applicant indicated that he still attends but when asked about his initial referral indicated that he was initially referred by the government and also by members of the church for assistance with migration related services.  He indicated he last saw someone from Ruah Mental Health Services when they attended his house the Sunday prior to the hearing because they were good friends with his mother and came to take the children to church.  His evidence was that it had been some time since he had attended Ruah Mental Health Services at their office. There is very limited information available in relation to any personalised services provided to the applicant by Ruah Mental Health Services.

18. Mr Aboubakar Kabamba also told the Tribunal that he was regularly attending Church and his reference indicated that he is trying to learn to be a better person. 

19. The applicant’s offending has largely taken place when the applicant has been under the influence of alcohol. The applicant was therefore asked whether he had undertaken any rehabilitation in relation to issues stemming from alcohol consumption. The applicant indicated that he has not attended any alcohol related services and that he only started drinking since he came to Australia.

20. Mr Aboubakar Kabamba said that he has learned to control himself and to let things wash over him. 

21. The Tribunal acknowledges Mr Aboubakar Kabamba has registered a business with the Australian Business Register, completed a unit towards his Certificate in Business as well as fulfilled the requirements for a Certificate II in Warehousing Operations and notes that these are recent activities undertaken by Mr Aboubakar Kabamba but is not satisfied that these activities indicate that the applicant has embarked upon a successful rehabilitation programme.

1. Apart from his regular attendance at Church, Mr Aboubakar Kabamba has not actively engaged in any rehabilitation or consulted anyone about the problems he might experience with alcohol, even though it appears alcohol has been a contributing factor to each incident/offence. Without some form of assistance or on-going counselling the Tribunal is concerned that there may be a recurrence of similar incidents.

2. While it appears that Mr Aboubakar Kabamba’s offences are minor in nature, the initial incident occurred in Cairns in August 2012 and subsequent incidents occurred in December 2014 and January 2016. The Tribunal is not satisfied that there has been a sufficient lapse of time since the most recent incidents for it to be satisfied as to Mr Aboubakar Kabamba’s enduring moral qualities or for Mr Aboubakar Kabamba to be able to establish that he is now of good character. 

3. The Tribunal also notes the January 2016 incidents involved a conviction for driving under the influence of alcohol which the Tribunal considers demonstrates a disregard for the safety of others in the community. 

4. The Tribunal is not satisfied with the applicant’s explanation that he failed to declare his previous conviction in Cairns as it simply was not in his mind at the time or with his explanation for not telling the Tribunal about his prior conviction for driving on a learner’s permit without a fully licensed driver with him.  The Tribunal also notes that Mr Aboubakar Kabamba was aware that he was driving without holding a valid licence and required to have a fully licensed driver with him while on Learner plates but still drove in contravention of that requirement. 

5. Mr Aboubakar Kabamba also told the Tribunal that he was aware of the meaning of the police order but still returned to Ms Enobie’s house in breach of that order.

6. The Tribunal has had regard to the references provided by Mr Aboubakar Kabamba and while they indicate some awareness of the family violence issues, they do not refer or acknowledge in any way his other offences. While the reference from his employer indicates he is a good employee, the letters say little about his good character.  Therefore the Tribunal gives them minimal weight in support of Mr Aboubakar Kabamba’s good character.

7. The Tribunal considers that a person of good character would not have engaged in the conduct that Mr Aboubakar Kabamba has engaged in. The Tribunal also considers that a person of good character would be more forthcoming about their past conduct in their dealings with authorities, including the Tribunal and the Department.

8. The evidence indicates that the applicant returned to Ms Enobie’s house on 25 December as he wanted his wallet and passport despite knowing that a police order was in place.  The evidence also indicates that the applicant was aware at the time of his driving offences that he was driving without a fully licensed driver with him and that he had consumed alcohol prior to driving.  The Tribunal does not consider there are any extenuating circumstances relating to the offences that mitigate his behaviour.

9. Mr Aboubakar Kabamba told the Tribunal that he is sorry for his behaviour. He told the Tribunal that he has had problems in the past and now he needs to focus on his work, his children and his future.   However he also suggested that other people have caused trouble for him by calling the police over such minor incidents. He maintained that Ms Enobie was as much at fault as he was yet she was able to obtain citizenship and he has not been able to.  The Tribunal found that contrary to his expression of remorse, in his oral evidence, Mr Aboubakar Kabamba appeared to show little remorse for his actions, making excuses for the various incidents resulting in the charges against him and suggesting that others were at fault for his predicament.  The Tribunal is not satisfied that Mr Aboubakar Kabamba has accepted responsibility for his past actions or that he is truly remorseful for his conduct.

10. After considering all the available evidence and weighing the various factors, the Tribunal cannot be satisfied on the evidence that Mr Aboubakar Kabamba is now of good character.  

    CONCLUSION

11. In considering all of the relevant circumstances and weighing the available evidence, I find Mr Aboubakar Kabamba is not of good character and does not satisfy s 21(2)(h) of the Act.

    DECISION

12. The Tribunal affirms the decision under review.

I certify that the preceding 49 (forty -nine) paragraphs are a true copy of the reasons for the decision herein of Ms A Goodier, Member

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Administrative Assistant

Dated 24 October 2016

Date of hearing	15 August 2016
Applicant	In person (self-represented)
Representative for the Respondent	Ms A Ladhams
Solicitors for the Respondent	Australian Government Solicitor