Aqay Lui and Minister for Immigration and Border Protection
[2014] AATA 544
[2014] AATA 544
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/0221
Re
Aqay Lui
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Egon Fice, Senior Member
Date 8 August 2014 Place Melbourne The Tribunal affirms the decision made on 31 December 2013 refusing Mr Lui’s application to become an Australian citizen.
.......[sgd Egon Fice].................................................................
Egon Fice, Senior Member
CITIZENSHIP – Refusal of application to become an Australian Citizen – Good character requirement – General eligibility criteria – History of offending
Legislation
Australian Citizenship Act 2007 (Cth) s 21
Cases
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Hneidi and Others v Minister for Immigration and Citizenship (2010) 182 FCR 115
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Secondary Materials
Australian Citizenship Instructions, Department of Immigration and Citizenship National Office (1 July 2013)
REASONS FOR DECISION
Egon Fice, Senior Member
8 August 2014
Mr Aqay Lui is a Tongan citizen. He arrived in Australia on 9 February 1985 and currently holds a subclass BC 100 permanent visa granted to him on 17 December 2010. His application for Australian Citizenship, made on 29 January 2013, was refused by the Department of Immigration and Border Protection (Department of Immigration) in a decision made on 31 December 2013. The reason given for refusal was that Mr Lui was not a person of good character at the time of the decision and hence did not meet the general eligibility requirement for citizenship set out in s. 21(2)(h) of the Australian Citizenship Act 2007 (the Citizenship Act).
The only issue I am required to determine is whether Mr Lui was a person of good character as at 31 December 2013.
HISTORY OF OFFENDING
I should first point out that although Mr Lui has made this application under the given name Aqay in the identity declaration made for the purposes of his Citizenship application, Mr Lui indicated he had a second given name which was Kalim. I make that point because his record of criminal offending, which was in evidence before me, refers only to Kalim Lui.
In summary, Mr Lui’s history of offending is as follows:
·6 September 1996 – theft from shop; theft of a motor vehicle – all charges without conviction, adjourned to 1 September 1997 on $500 good behaviour bond
·31 January 1997 – theft – without conviction adjourned for six months on $200 good behaviour bond
·24 August 1998 – resist police or person assisting police – conviction – fined $750; criminal damage (intent damage/destroy) – one month imprisonment wholly suspended for 12 months – pay compensation $1500
·18 September 1998 – resist police or person assisting police – without conviction fined $100
·23 September 1999 – aggravated burglary – one year imprisonment suspended for two years; recklessly cause serious injury – three months imprisonment concurrent sentence suspended for two years
·8 May 2003 – refuse or fail to state name and address – assault police – conviction and fined $500
·14 July 2004 – criminal damage (intent damage/destroy) – assault police – using indecent language in a public place – conviction fined $300
·30 June 2005 – recklessly cause serious injury – affray (common law) – 18 months imprisonment sentence suspended for three years – community-based order for 12 months to perform 150 hours unpaid community work and to undergo assessment and treatment of alcohol or drug addiction – undergo assessment for programs to reduce reoffending and participate in such programmes has directed
·27 March 2006 – variation of sentence in respect of conviction recorded on 14 July 2004 as a result of default of payment of $300 – perform 15 hours unpaid community work
·1 April 2009 – failure to comply with community based order regarding the sentence on 30 June 2005 – convicted and fined $250
·18 May 2009 – failure to comply with community-based order regarding sentence on 27 March 2006 – criminal damage – assault police – use indecent language in public place – community-based order cancelled – in default payment of $158.52 – imprisoned for two days
THE GOOD CHARACTER REQUIREMENT
The expression, good character, is not defined in the Citizenship Act. It should therefore be given its ordinary meaning in the context in which it appears, in this case, in the eligibility for citizenship provisions in s. 21. Furthermore, the Minister, and for the present purposes, the Tribunal standing in his shoes for the purposes of this review, must be satisfied that the person is of good character at the time the Minister or the Minister’s delegate made the decision on the application of the applicant, which was 31 December 2013.
Some guidance regarding the meaning of the expression, good character, may be found in the decision of the Full Court of the Federal Court of Australia (Davies, Lee and RD Nicholson JJ) in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422. Davies J said, at 425:
It should also be observed that the term “good character” is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual’s reputation or repute… I do not suggest that, in the context, “good character” refers to reputation and repute as such. It does not. But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.
I should also refer to the Australian Citizenship Instructions (the ACIs) to which Mr Ned Rogers, a solicitor with the Australian Government Solicitor who appeared on behalf of the Minister, submitted should be given consideration. In particular, Mr Rogers referred to the following:
· The seriousness of offences. Crimes of violence, and other crimes which have incurred a prison sentence or sentences totalling 12 months or more, are ordinarily considered serious.
· Whether an offence was a one-off occurrence that can be considered out of character, or part of an ongoing pattern of behaviour suggesting a person is not of good character.
· The applicant’s age at the time of offending. Offences committed at a young age may be given less weight.
· The time that has passed since the applicant was free of obligations to a court.
· Repeat convictions for the same offence, which indicate a serious repeat offender.
· The length of time between the applicant’s last offence and the application for citizenship.
As the Full Court of the Federal Court of Australia (Spender, Emmett and Jacobson JJ) explained in Hneidi and Others v Minister for Immigration and Citizenship (2010) 182 FCR 115, the ACIs are not Ministerial policy but rather are a statement of departmental policy, having been approved by a senior departmental officer rather than the Minister or Parliamentary Secretary. Nevertheless, the Court, after referring to the Full Court decision in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, said there was nothing in the statement of principles regarding the entitlement of an administrative decision-maker to take into account the state of governmental policy which made any distinction between departmental policy and Ministerial Policy. The Court explained, at 121 – 122:
The principal for which Drake (No 2) is authority is well established. It is that where a Minister has adopted a general policy as a guide to the exercise of the discretionary power, the Tribunal will consider an argument against its application to the facts of the case but “cogent reasons” will have to be shown against its application; see at 645.…
Second, in any event, the highest that the observations rise for present purposes is that different considerations may apply to the review of each different kind of policy. This says nothing about the relevance of, or weight to be accorded to, Ministerial policy as against departmental policy.…
The Tribunal accepted that policy statements (which included the Instructions) were not binding on it but that such statements must be brought to account. The Tribunal did not abdicate its review function so as merely to adopt an uncritical application of the policy statements in the Instructions.
WHETHER THE APPLICANT WAS A PERSON OF GOOD CHARACTER AT THE RELEVANT TIME
Mr Lui’s criminal offending, for which he was convicted between 1996 and 2009, has a distinct and disturbing pattern. It involved theft, violence and injury to others, resisting police and assaulting them, and causing criminal damage to property (see National police certificate, T documents pages 54 – 55). There are also instances where he has not paid the fine imposed on him for a conviction and was then ordered to perform community-based orders. On two occasions, he failed to comply with the community-based orders and received further fines. That behaviour evidences the fact that at least up until 2009, Mr Lui had scant regard for the law or for law enforcement officers. While Mr Lui’s offending began when he was aged 15 years, it continued at least up until he was 27 years of age. It appears alcohol and/or drugs may have contributed to his behaviour.
Of considerable concern to me were the responses Mr Lui gave regarding his offending. In summary, they are as follows:
(a)September 1996 convictions – he agreed he was caught stealing from a Two Dollar Shop but regarding the second theft, which took place from Myers, he said he was taken in for questioning by guards about what his friend had stolen. Feeling guilty, he disclosed the T-shirt he had also stolen and was then charged. The police report of the second incident tells a slightly different story. It describes Mr Lui attending the Myers department store where his co-offender took a pair of jeans while Mr Lui kept watch. They then went to the Daimaru store when both proceeded to steal a T-shirt each by placing those T-shirts under their jumpers and they left Daimaru where they were intercepted by Daimaru security staff. Furthermore, Mr Lui said that at the time he was hanging around older guys and being young, he was easily influenced.
(b)August 1998 convictions – the police incident report indicates that Mr Lui, in the company of three others, having been refused entry into the Gower Hotel in Preston, assaulted security staff at the hotel then used a metal barrier stand to smash two hotel windows. The offenders ran from the scene to a car park where they were approached by police. All of the offenders resisted arrest and struggled with police. The report suggests that all of the offenders were drunk. In his response, Mr Lui claimed a friend of his was attacked by a bouncer who then ran back into the hotel and locked the door behind him, taunting him and his brother and friend with racial slurs. He said that in anger he picked up a pole and struck the window, then he ran off into a car park. He said the police called to them when they began to fight his friend and so he and his brother went back to get him. He suggested he walked back with his hands up but was set upon by three police officers, thrown onto the ground when they proceeded to kick him. He said he threatened to press charges and in turn, they charged him with resisting police.
(c)September 1999 convictions – the police report of the incident leading to the conviction states that Mr Lui’s brother, a female, and Mr Lui entered premises through the rear door and assaulted a man and woman who were sleeping in the lounge room. A weapon, a length of timber, was used in the assault and the victims were treated by ambulance at the scene. In his response, Mr Lui said that he was taken to a house by his older brother and his wife. They said to him that persons in the house had threatened to hurt his nephew and niece. He suggested that he did not attend voluntarily but, because he rang his brother for a lift home, and the car was taken to the premises where the assault took place, he was not a volunteer in the attack upon the two victims. Apparently, two of his cousins were also in the car although they also were not willing attendees. Mr Lui said he was told there were two male persons, a female person and dog present in the house. He said his brother asked him and his cousins to go in and watch out for the dog and the second male who he said had been in a mental facility and was unpredictable. He said he and his cousins refused so his brother and the female went without them. He suggested that after five minutes of waiting he was worried and so he followed them. He found his brother wrestling with the man and then a dog ran in and so he kept the door closed, frightened that it might bite. He said he did not want to be there and that the victims also stated that, presumably, to the police. He then suggested that after a short wrestle he pleaded with his brother to leave and so they left. He said he was 17 years old at the time.
(d)May 2003 convictions – the police report regarding these convictions indicates that the police approached a motor vehicle occupied by three male persons. The vehicle had stolen number plates. Mr Lui was arrested and taken to a police station where he was interviewed. In the interview room, he attempted to head-butt a police sergeant but was restrained by other police members. The report notes that Mr Lui was very aggressive, abusive, and uncooperative. In his response, Mr Lui said he was in a friend’s car which he didn’t know had stolen number plates. When the police asked him for his name, because he had not done anything wrong, he refused to cooperate. He then said he was taken to the police station and beaten up. He threatened to press charges so, in turn, they charged him with assault. When he went to court, he was advised by his lawyer that if he dropped the assault charges against the police, he would get a minor sentence and so he complied. He claimed this was the last time he was in trouble with the law.
(e)July 2004 convictions – the police report about this incident states it occurred in the early hours of 1 January 2003. According to the report, Mr Lui attended the Galactic Circus, at Southbank, and while at that premises he became aggressive to other patrons and was asked by security personnel to leave. Mr Lui refused to leave and police attended to assist. Mr Lui resisted police and was arrested for being drunk. He was placed in the rear of a cage car whereupon he immediately kicked out the rear windows of the vehicle. He was then taken to the Melbourne custody centre. In a further report prepared on 1 February 2003, it is said that when he was placed in the cage car, Mr Lui immediately kicked and broke three rear windows, the force generated by Mr Lui bending the B pillar separating the front and rear and that it popped both doors. The report then states: any members (sic) who comes into contact with Lui should display the utmost caution and be aware he will assault police without provocation. Lui is extremely violent and unpredictable. Lui is also wanted in relation to a stabbing of a male earlier on in the evening of new years eve. In response, Mr Lui said he was under the influence of alcohol and he suspected that his drink had been spiked as he was not himself that night. He also suggested that this was not a serious incident given that he was only fined $300.
(f)June 2005 convictions – the incident which resulted in these convictions appears to have occurred in December 1998 and it involved a large number of persons, embroiled in a violent confrontation where weapons such as knives, swords and machetes were produced. Mr Lui did not respond to these matters.
(g)March 2006 conviction – this was simply a variation of the sentence in respect of the July 2004 convictions because Mr Lui failed to pay the $300, fine. He was then sentenced to perform 15 hours unpaid community work.
(h)April 2009 conviction – this resulted from a failure by Mr Lui to comply with the community based order made on 30 June 2005 in respect of his involvement in an affray.
(i)May 2009 conviction – this resulted from his failure to comply with the community based order made on 27 March 2006. In response, Mr Lui said that he attempted to complete his community based orders on a Saturday and a Sunday before leaving for Tonga. He said he was told his name was not on the list so he was sent home. Having booked his ticket for 29 June, he said he was unable to complete it before leaving for Tonga. He said only 16 of the 200 hours had not been completed. However, it is apparent that there were three discrete breaches of community based orders and a default in paying a fine, not simply a single breach as Mr Lui suggested.
The common theme running through Mr Lui’s explanation for his offending and convictions is that he was led astray by others or found himself, unavoidably, in inextricable circumstances. With respect to Mr Lui, the evidence strongly suggests that was not the case. The repeated offending involving violence strongly suggests Mr Lui’s active involvement in criminal matters. Furthermore, I do not accept his statements that he was assaulted by police rather than he assaulted police. That is because, again, the nature and regularity of his offending between 1996 and 2009 strongly suggests otherwise. In addition to the above, the police reports also record other instances in which Mr Lui has been involved but where charges appear not to have been brought. They involve being drunk and disorderly at Thornbury railway station in October 2012; and, while intoxicated, gate crashing parties where brawls have erupted requiring police attendance. This history of criminal offending, which may have abated to some degree in the past couple of years, nevertheless appears to have continued. It does not support his claim that he has changed and has not offended in a serious way since 2002. This evidence clearly points to the fact that he is not person of good character.
Regardless of the above, Mr Lui produced character references from some 12 persons attesting to his character. Many of those persons know Mr Lui because they attend a gym where he is a trainer. Five of those persons have known Mr Lui for three years or less. There was no evidence that they were aware of Mr Lui’s criminal history.
On the other hand, there were five witness statements from persons who have known Mr Lui for a much longer period of time. Some of those have indicated they were aware that he got into trouble when he was younger. However they all attested to the fact that Mr Lui had changed over the past few years, adopting a far more socially acceptable form of behaviour. Nevertheless, all of these persons appear to have had contact with Mr Lui as a martial arts trainer at the gymnasium where they appear to attend from time to time.
One of the difficulties with the character references given by the various persons I have referred to above is that none of those persons attended the Tribunal for the purpose of giving oral evidence or being cross-examined. When Mr Lui was asked why they were not called, he simply said he did not want to bother them. Because that evidence is untested, it must necessarily be given less weight.
At the conclusion of his cross-examination, I asked Mr Lui why he wished to become an Australian Citizen. He simply indicated it was because he had been in Australia for some time and that his girlfriend, who is now pregnant with his child, was Australian. He also said that his older brother had been granted Australian Citizenship despite the fact that his criminal record was worse than his.
However, after the hearing of this matter had concluded, Mr Rogers wrote to the Tribunal on 24 June 2014 referring to the statement Mr Lui had made about his brother being granted Australian Citizenship. Mr Rogers pointed out that at the time of the hearing he had no instructions from his client about Mr Lui’s brother. Having made enquiries of the Department of Immigration, he was able to say that the Department’s records indicated Mr Lui had only one brother who had applied for Australian Citizenship. That application was refused on 17 April 2014 on character grounds. It is subject to an application for review by the Tribunal, the application having been lodged on 14 May 2014. I have no reason to doubt the accuracy of that statement. The letter which Mr Rogers sent to the Tribunal was copied to Mr Lui and, as at the date of writing these reasons, Mr Lui has lodged no further material with the Tribunal.
CONCLUSION
Mr Lui’s criminal record between 1996 and 2009 does not suggest that he is a person of good character. He has been involved in serious crimes involving violence on a number of occasions. In addition, his behaviour indicates his unwillingness to comply with the law or to respect those persons involved in enforcing the law.
On the other hand, I accept that Mr Lui has ameliorated his criminal behaviour to some extent in the more recent years. However, I cannot find that he has reformed to such an extent that it can be said he is now a person of good character. In fact, his untruthful comment about his brother having been granted Australian Citizenship simply underscores the fact that Mr Lui’s statements about his prior offending and reformation cannot be relied upon. I believe it will take a number of years for Mr Lui to be able to confidently demonstrate that he has left his past behaviour behind him.
Accordingly, I find that Mr Lui was not a person of good character at the time a delegate of the Minister rejected his application for Australian Citizenship. I find that the decision made by the Minister’s delegate on 31 December 2013 refusing Mr Lui’s application to become an Australian citizen by conferral was correct and I affirm that decision.
I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Egon Fice ...[sgd].....................................................................
Associate
Dated 8 August 2014
Date of hearing 17 June 2014 Representative for the Applicant Self-represented Advocate for the Respondent Ned Rogers Solicitors for the Respondent Australian Government Solicitor
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