Apulu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2022] AATA 8

Apulu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 8 (6 January 2022)

Division:GENERAL DIVISION

File Number(s):      2020/5045

Re:Paese Apulu

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:6 January 2022

Place:Sydney

The correct or preferable decision is to affirm the decision under review.

..........................[SGD]..............................................

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

CITIZENSHIP – whether the good character requirement under paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) is satisfied – relevant law and policy considered – applicant’s background and criminal history considered – character references considered – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth), s 21

CASES

BOY19 v Minister for Immigration and Border Protection [2019] FCA 574

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

SECONDARY MATERIALS

CPI 15 – Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

6 January 2022

BACKGROUND

1. The Applicant is a 48-year-old citizen of New Zealand.

2. On 27 December 1992, the Applicant first arrived in Australia. The Applicant has since travelled offshore multiple times on a Special Category visa.

3. On 9 October 2018, the Applicant lodged an application for Australian citizenship by conferral. At Question 39 of the application the Applicant ticked ‘Yes’ to the question ‘Have you been convicted of, 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)?’. At the end of Question 39, the form stated ‘If you answered ‘Yes’ to any of the questions at Question 39, you must give ALL relevant details. If the matter relates to a criminal conviction, please give the nature of the offence, full details of sentence and dates of any period of imprisonment or other detention’. The Applicant responded:

   DUI in 2007

   Assault

   Was in psychiatric facility

4. The Applicant declared that the information was complete, truthful and correct in every detail and was warned that giving false or misleading information is a serious offence.

5. On 7 April 2020, the Department wrote to the Applicant outlining information that suggested she was not of good character and invited comment.

6. On three occasions (4 May 2020, 19 May 2020 and 15 June 2020) the Applicant sought, and was granted an extension of time to provide comment to the Department. Following the last extension granted, the Applicant’s response was due on 17 July 2020. The Applicant did not provide a response.

7. On 21 July 2020, a delegate of the Respondent refused her application for citizenship on the basis that she did not satisfy paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act).

8. On 19 August 2020, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision. The application was lodged one day out of time. On 14 September 2020, the Tribunal granted the Applicant an extension of time (by consent).

   ISSUE

9. The issue before the Tribunal is whether the Applicant is of good character for the purposes of paragraph 21(2)(h) of the Act.

   LEGISLATIVE FRAMEWORK

10. The Tribunal is required to assess the Applicant’s application for citizenship against the ‘general eligibility’ criteria contained in subsection 21(2) of the Act.

11. Subsection 21(2) provides:

    (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) possess 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. 

    Character Requirement

12. The character requirement is satisfied if an applicant ‘is of good character at the time of the Minister’s decision on the application’. The Citizenship Procedural Instruction 15 (CPI15) provides guidance to decision makers on the interpretation and exercise of the powers under the Act. The Tribunal, as the decision maker, should apply departmental policy unless there are cogent reasons not to do so (see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [640] per Brennan J).

13. CPI15 states that a decision-maker may 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 their migration and citizenship process.

14. Relevantly, CPI15 provides that a person of good character would:

    ·respect and abide by the law in Australia and other countries;

    ·not practise deception or fraud in their dealings with the Australian Government, or organisations, for example – concealing criminal convictions; and

    ·not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct.

15. CPI15 also provides a framework by which decision makers are able to ‘weigh up’ a character decision. Decision makers are required to consider:

    ·whether a person of good character would have behaved the way the applicant did;

    ·what evidence is available to demonstrate that the applicant has upheld and obeyed the law;

    ·whether the applicant has behaved in accordance with Australia’s community standards; and

    ·whether the applicant shares Australia’s democratic beliefs and respects its rights and liberties.

16. In so doing, the decision maker should look holistically at the applicant’s behaviour over a lasting or enduring period of time.

    EVIDENCE

17. At the hearing, the Applicant said that she regarded it as very important that she be granted Australian citizenship. She outlined the circumstances of the offences of which she was convicted and also the reasons for her failure to declare those offences in her citizenship application. She expressed little remorse for her offending history but, at least in relation to the offence from October 2007, she appeared to blame the victim, who she said came to her house with the intention of making trouble. The victim was said by the Applicant to have been the one who ‘started the fight’.

18. The second offence, which related to an incident at a McDonald’s restaurant in July 2012, was blamed on the Applicant’s mental health issues at the time. The Applicant said that she did not know that the victim was at McDonald’s at the time she drove into the carpark, but that she “just flipped out” when she saw the victim’s car in the carpark. She accepted that she had driven her car into the victim’s vehicle which was unattended at the time, that she had punched the victim and that she had thrown a chair in the direction of the victim’s child. Although, the Applicant said that she did not have any intention of harming the child. The Applicant did accept that the incident at McDonald’s was not the victim’s fault, but said that her behaviour was due to the fact that she was mentally unwell at the time.

19. The Applicant also said that she was now a friend of the victim and that the problem at the time of the incident related to a “custody dispute”. The Applicant gave evidence, which I accept, that she had not committed any crimes against the victim since the date of the offences.

20. When questioned as to her numerous driving offences, the Applicant said she had driven an unregistered and uninsured vehicle and had driven whilst her licence was suspended because she had no other way of getting her children to see the doctor. She also said that some of the offences had been committed because of mental health issues or not knowing what she was doing, at least in the instance of moving a vehicle belonging to a third party. The Applicant said that at the time of that offence she had been going out a lot and that she had been hospitalised the following year.

21. The Applicant accepted that she had had her licence suspended in 2016 because she did not complete the required driver education course. The suspension was lifted when she completed the required driver education course in August 2019, however on 8 October 2019 her licence was further suspended until April 2020. The Applicant said it had not been possible for her to complete the driving course before that date. The Applicant was convicted of further driving offences on 1 July 2020.

22. I note that the Applicant in her statement of 26 October 2020 said that she had not been guilty of any offences since 2012 because she was on regular medication and seeing a psychiatrist. When questioned as to why her driving offences were not disclosed on her citizenship application, the Applicant said she had been rushed in filling out the form and that she was not able to handle the pressure she was facing at the time.

23. The Applicant said she had completed her citizenship application by herself and that she had not disclosed the assaults of which she had been convicted because she was “doing it quickly” and “thought she would list it all at another time”. She also said she did not remember all of her offending and thought that offences committed more than seven years ago were not relevant. She also said that the application form did not have enough space on it.

24. The Applicant gave evidence that she had been diagnosed with bipolar disorder in 2008. She said that she started treatment “properly” in 2016 and that although she had been prescribed medication in 2008, she did not want to take the prescribed medication and “relapsed”. The Applicant said that since she had been taking her medication, she was a different person. She said she was now stable, and that her recent offences were minor. She said she now took her medication every day.

25. The Applicant gave evidence that she had completed a Diploma of Legal Services and that she was now studying law. She had now lived in Australia for a very long period and emphasised that Australian citizenship was very important to her.

26. The Applicant filed four character references to which I give limited weight, partly because the references of Mr Jonathan Paulo and Ms Tiana Davis-Mahia do not acknowledge the Applicant’s offending history, and the reference from the Applicant’s neighbour is signed and only vaguely identifies the author. I note further than Ms Serina Faaoloii and Ms Davis-Mahia are family members.

    DISCUSSION

27. There is no definition of ‘good character’ in the Act, but I have had regard to the factors set out in CPI15 and the Australian Citizenship Policy. I have also considered relevant case law on the issue of good character, including BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 where O’Bryan J said at [51]:

    The following principles can be distilled from the authorities about the meaning of the expression “good character” in s 21(2) of the Act. First, it refers to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community, although the latter may provide evidence of the former. (emphasis added) The expression is not concerned with the physical or intellectual attributes or abilities of a person. Second, the expression does not have a fixed or precise content. Like other broad statutory standards, such as whether an entity is a fit and proper person to hold a statutory licence or whether a decision is in the public interest, the expression imports a discretionary value judgement to be made by reference to undefined factual matters confined only to the subject matter, scope and purpose of the statutory provisions (cf O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 348 per Mason CJ and 380-382 per Toohey and Gaudron JJ). Third, and as a corollary of the second point, the expression requires a judgement as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny the person citizenship.

28. I accept the Applicant’s evidence as to her mental illness and the effect that untreated mental illness would have had on her behaviour. However, it is of concern at least in relation to the incident in 2007, that the Applicant, even at the hearing before the Tribunal, continued to blame the victim for going to her house in the lead up to the incident. The offences are serious, and the Tribunal is bound by the decisions of the Magistrates court. It is not the Tribunal’s position to question those convictions or to minimise the seriousness of them.

29. The Applicant’s driving record demonstrates a disregard for the law. Although the Applicant said that when she was younger she did stupid things like “running a red”, she has continued to offend. Despite the Applicant saying that a lot of her offences were minor, many of those offences, such as driving whilst her licence was suspended and driving a car that was neither registered nor insured, are not minor and must be taken seriously.

30. It is also of concern to the Tribunal that the Applicant did not appear to treat her citizenship application with the seriousness such an important document deserves. Quite apart from the obligation to make proper disclosure to the Australian government, the conferral of Australian citizenship is a very significant benefit which should never be taken lightly. The Applicant’s behaviour in this regard indicates a lack of respect and a failure to understand that citizenship is a privilege not a right.

31. I accept that the Applicant’s behaviour has improved since she has been receiving treatment and that she does have remorse for her previous actions. I also accept that Australian citizenship is important to her.

32. In considering the totality of the evidence, I am of the view that the Applicant currently fails to meet the requirements of paragraph 21(2)(h) of the Act. I would, however, encourage the Applicant to make a further application when more time has elapsed, her mental health has further stabilised, and she is able to clearly demonstrate that her offending is behind her and that she is in her own words, a “different person”, with no further offences and a demonstrated respect for the requirements of Australian law.

    DECISION

33. For the reasons outlined above, the correct or preferable decision is to affirm the decision under review.  

I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

...........................[SGD].............................................

Associate

Dated: 6 January 2022

Date of hearing:	17 November 2021
Applicant:	Self-Represented
Solicitor for the Respondent:	Ms I Leonard, Australian Government Solicitor