Anochie and Minister for Immigration and Multicultural Affairs (Citizenship)
[2025] ARTA 628
•29 May 2025
Anochie and Minister for Immigration and Multicultural Affairs (Citizenship) [2025] ARTA 628 (29 May 2025)
Applicant/s: John Anochie
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/3866
Tribunal: General Member S Evans
Place:Sydney
Date: 29 May 2025
Decision:The Tribunal affirms the decision under review.
...................[SGD].....................................................
General Member S Evans
Catchwords
CITIZENSHIP – Refusal of citizenship – whether applicant is of good character under section 21(2)(h) of the Australian Citizenship Act 2007 (Cth) – drug importation – visa cancelled – cancellation set aside - Tribunal not satisfied Applicant is of good character at time of decision – Decision affirmed.
Legislation
Australian Citizenship Act 2007 (Cth)
Migration Act 1958 (Cth)
Cases
Anochie and Minister for Immigration and Citizenship [2013] AATA 391
Re Drake and Minister for Immigration and Ethnic Affairs (No 2)(1979) 2 ALD 634
Irving v Minister for Immigration, Local Government and Ethnic Affairs[1996] FCA 663; (1996) 68 FCR 422
Secondary Materials
Citizenship Procedural Instruction 15 - Assessing good character under the Citizenship Act
Statement of Reasons
INTRODUCTION
John Anochie (the Applicant) is a 55 year-old citizen of Nigeria who arrived in Australia on 27 October 2000 as holder of a Subclass ZA 941 visa and currently holds a Permanent Partner (subclass 801) visa. On 27 September 2023 he lodged an application for citizenship by conferral. On 28 May 2024, a delegate of the Minister for Immigration and Multicultural Affairs (the Respondent) refused the application as they were not satisfied the Applicant was of good character, which is one of the requirements for conferral of Australian citizenship.
The Applicant seeks review of the decision at the Administrative Review Tribunal (the Tribunal).
For the reasons that follow, the reviewable decision will be affirmed.
RELEVANT LEGISLATION AND POLICY
Subsection 21(1) of the Australian Citizenship Act 2007 (Cth) (the Act) provides that a person may make an application to the Minister to become an Australian citizen.
Subsection 24(1) of the Act provides that if a person makes an application under section 21 of the Act, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Subsection 21(2) of the Act sets out the general eligibility requirements for Australian citizenship. Relevant to this application, paragraph 21(2)(h) of the Act stipulates that the Minister must be satisfied that a person is of good character to be eligible to become an Australian citizen.
The term ‘good character’ is not defined or qualified by the Act. Its meaning was considered by the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (Irving)[1] in the context of the power of the Minister to refuse to issue a visa. Lee J said:
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… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.[2]
[1] (1996) 139 ALR 84 (Irving).
[2] Irving, 94
The Citizenship Policy provides guidance on the interpretation and application of the good character requirement. The Citizenship Procedural Instruction 15 Assessing good character under the Citizenship Act (CPI 15) identifies the legal requirements and related policy and procedures that apply to the assessment of an application for Australian citizenship under the Act. The Tribunal is not bound to strictly apply the Citizenship Policy, but as it is government policy it should be considered unless there are cogent reasons not to do so.[3]
[3] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
Informed by the discussion in Irving, subsection 3.3 of CPI 15 states that:
A decision-maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout the time the applicant held a visa, and during the time their citizenship application was lodged and processed.
The policy specifically calls for decision makers to consider an applicant in a holistic way; that is, all aspect of their life that may be relevant to consideration of character.
A person’s enduring moral qualities encompass:
- characteristics which have endured over a long period of time;
- distinguishing right from wrong; and
- behaving in an ethical manner, conforming to the rules and values of Australian society.
BACKGROUND AND EVIDENCE
On 12 May 2008 the Applicant plead guilty to one charge of Import marketable quantity of controlled drug (cocaine) The wholesale value of the cocaine imported was estimated between $311,000 and $494,000.[4] On 14 November 2008, the Applicant was sentenced in the District Court of New South Wales to eight years and six months imprisonment with a non-parole period of five years and four months.
[4] TB1 p 1-12
In sentencing the Applicant, Judge Hosking found he was the sole organiser, importer and distributor of the cocaine in Australia. The Applicant’s claim to the author of a pre-sentencing report that his only role was as a courier, was ‘patently untrue’. His plea of guilty ‘came very late,’ and his assistance to the AFP was ‘limited in the extreme’.[5]
When he was arrested on 30 October 2006, the Applicant told police that he was picking up a package for a friend and did not know what was in it.[6] At the hearing, the Applicant confirmed this statement was untrue, and attributed his dishonesty to having been knocked to the ground.
[6] TB1 p 7
On 30 January 2012, the Respondent cancelled the Applicant’s visa under section 501(2) of the Migration Act 1958 (Cth) (the Migration Act) as he did not pass the character test. As set out in the reviewable decision, the visa cancellation was set aside by the Administrative Appeals Tribunal (AAT) on 24 April 2012 and substituted with a decision that the Applicant’s visa was not cancelled. The Tribunal’s decision was quashed by the Federal Court on 18 December 2012 and remitted to the AAT for reconsideration[7]. On 12 June 2013, the AAT again set aside the Minister’s decision and substituted it with a decision that the Applicant’s visa was not cancelled.
[7] T2 p 15
On 17 October 2016 the Minister personally cancelled the Applicant’s visa under section 501A(2) of the Migration Act. The Applicant appealed the decision to the Federal Court which quashed the Minister’s decision by consent on 31 May 2017. On 3 May 2018 the Respondent notified the Applicant of the Minister’s intention to consider cancelling the Applicant’s visa personally under section 501A(2) of the Migration Act. To date the Minister has not cancelled the Applicant’s visa. In any event, the current application requires me to consider if the Applicant meets the good character requirement in section 21(2)(h) of the Act, not the character requirement in the Migration Act.
The Applicant arrived in Australia when he was approximately 32 years old. In a statement dated 30 July 2024, he outlines his personal circumstances at the time of his offending:
At the time of the offending behavior [sic] involving the carriage of illegal drugs, my life was in a state of disarray and confusion. I was facing tremendous financial pressures, which clouded my judgment and led me to make regrettable decisions. My relationships with family and friends were strained, as I was constantly overwhelmed by the demands and expectations placed upon me. In addition, I lacked a strong support system and felt isolated, which exacerbated my vulnerability to negative influences.
The weight of my circumstances led me to seek quick solutions to my problems, and unfortunately, I turned to illegal activities without fully considering the consequences. My self esteem was at its lowest, and I mistakenly believed that participating in such activities could provide a temporary escape from my financial and emotional struggles. I realize now that this was a serious error in judgment and a misguided attempt to regain control over my life.
[emphasis added]
The sentencing remarks record the Applicant told the author of a pre-sentence report that he is not a drug user and only drinks alcohol socially. He said that around the time of the offending he was informed that his sister had been diagnosed with cancer and required money for treatment.
In cross examination at the hearing, the Applicant gave evidence he paid for his sister’s medical treatment. He said at the time she was calling him ‘every day’ requesting money, but he was unable to confirm how much money he was asked for. He recalled he was not asked for a fixed amount of money but was unable to say how much he gave. The Respondent’s representative proposed that the Applicant might have used the income he was earning as a bricklayer to support his sister, but he said he was not paid enough to do so.
In Anochie and Minister for Immigration and Citizenship [2013] AATA 391, the AAT considered the Applicant’s explanation for his offending.
Mr Anochie was asked why, in a statement dated 26 March 2012 submitted at the previous hearing, he had said “My offending behaviour was driven by a number of factors including the illness of my sister”.
Mr Anochie could not recall making that statement but he was adamant that his sister’s cancer was the sole reason he became involved with importing drugs. He said that, by “a number of factors”, he meant only that his work as a bricklayer was unpredictable because of the weather, which made it difficult for him to send her money.
In cross-examination, Mr Anochie agreed that he was involved in conduct directly associated with drug importation at least from July 2004, and he conceded that his conduct extended over a period of two years until his arrest in 2006. He did not agree that this suggested that his sister’s illness had nothing to do with his offence. Nor did he agree with the proposition that his consistent attempts throughout the criminal and tribunal proceedings to attribute his conduct to his sister’s illness showed he was attempting to minimise the criminality of his conduct.
The Applicant was taken to the sentencing remarks where it is recorded in relation to the payments:
Inquiries conducted by the AFP with Austrac revealed that between 9 February 2006 and 14 August 2006 a total of $77,581 was remitted to beneficiaries in Brazil, Nigeria and Pakistan. Those payments ranged from $1,390 to $7,137 per transaction.[8]
[8] TB7
He said he could not recall whether the $77,581 figure was correct, but confirmed having sent money to Brazil, Nigeria and Pakistan. He did not say that all the money was for his sister, and confirmed some may have been payment for drugs.
On reflection, the Applicant says that while the carriage of illegal drugs was a grave error in judgement which triggered a difficult period in his life, it also became a turning point. The time he spent in prison was a transformative period of ‘intense reflection’. He felt a deep sense of despair and regret, but used the time and experience to better himself.
The Applicant did not record any incidents of misconduct while in prison. Upon his release from prison, he returned to his previous employment, where he worked full-time and substituted his income with a second job. He is now married, has a young son and continues to work hard to take care of his family. The Applicant writes that he has dedicated himself to rebuilding his life and contributing positively to the community. His relationships have improved as family and friends observed the genuine changes he had made.
Character references
Andy Bonsu and the Applicant attend the same church. Mr Bonsu has known the Applicant for approximately for 20 years, He described him as being supportive and committed to the church and as a responsible individual.
Semuel Abalo has known the Applicant for over 20 years and is also attends church with the Applicant. He is aware of the Applicant’s offending and believes he is a reformed person who offers support to young people to ensure they do not become involved in crime.
Benedict Imasuen-Brodrick has known the Applicant for 20 years. He has witnessed ‘profound personal transformation and growth’ in the Applicant. In his statement he says he is a hardworking and reliable individual who wishes to contribute to the community.
Nwabufo Chukwuneke has known the Applicant for six years. He is familiar with the Applicant’s offending conduct and has observed significant positive changes in his life.
Richard Avetti has known the Applicant for 22 years. He is aware of his conviction and writes the Applicant has proven to be an important part of the community.
Angela Ekwensi has known the Applicant for 12 years. She observed that the Applicant has taken responsibility for his offending and has shown a strong commitment to personal growth and rehabilitation.
Tony Oikelomen is aware of the Applicant’s offending and imprisonment. He writes of the Applicant’s selflessness, contribution to the church and volunteering with young people.
CONSIDERATION
The Applicant was convicted of a serious offence. The sentencing remarks and the significant custodial sentence he received as a first-time offender are indicative of the seriousness.
The Applicant provided character references who gave evidence at the hearing. The referees were aware of his offending, and spoke positively of his reform and contribution to the Australian community. He has provided evidence of his contribution through paid employment and paying tax. I accept that he is making a positive contribution to the community. It is to his credit that he has been open about his offending. He regularly goes to church and participates in activities which strengthen the church and benefit the broader community.
The Citizenship Policy at CPI 15 provides that the length of time since an offence was committed is a mitigating factor. In the Applicant’s case, his offending occurred in 2006 and the non-parole period ended on 29 February 2012. I take into account that more than a decade has passed since he fulfilled the obligations of his sentence, during which time there is no evidence to suggest further offending. While in custody, he appears to have been a model prisoner who worked hard.
CPI 15 also provides that in the case of a serious offence, a significant amount to time may have to pass before a person can be considered of good character. The policy specifically identifies drug trafficking, including importation and supply, as serious offences. In this matter, the sentencing remarks reveal a level of sophistication to the Applicant’s offending. It was not a spontaneous, single lapse of judgement and he appeared to have been the sole organiser of the importation and distribution of the cocaine.
In total, the evidence does not support the Applicant’s claim that a significant driver of his offending was the need to help his sister pay for medical treatment. His continued reliance on his sister’s illness to explain his offending conduct is not credible and weighs against a finding of good character.
Weighing all the available evidence, I am not satisfied that the Applicant is of good character at this time as required by the Act. Significant time has passed since the offending and the evidence supports a conclusion that the Applicant is now making a positive contribution to the community. However, the Applicant maintains that the offending was driven by external forces which clouded his judgement. This explanation is largely at odds with the facts as found by the District Court. On balance, I am not able to be positively satisfied that the Applicant is of good character at this time.
CONCLUSION
In considering the evidence, I am unable to make a positive finding of good character at this time and the Applicant does not satisfy s 21(2)(h) of the Act.
DECISION
For the reasons set out above, the reviewable decision is affirmed.
I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of General Member Evans.
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Associate
Dated: 29 May 2025
Date of hearing: 1 April 2025 Solicitors for the Applicant: C Levingston, Christopher Levington & Associates Solicitors for the Respondent: M Sheedy, Sparke Helmore
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