Barbosa and Minister for Immigration and Border Protection (Citizenship)

[2015] AATA 565

Barbosa and Minister for Immigration and Border Protection (Citizenship) [2015] AATA  565 (5 August 2015)

Division	GENERAL DIVISION
File Number(s)	2014/3956
Re	Fernando Barbosa
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Ms G Ettinger, Senior Member
Date	5 August 2015
Place	Sydney

The Tribunal affirms the decision under review.

...........................[sgd].............................................

Ms G Ettinger, Senior Member

CATCHWORDS

Citizenship by conferral – Applicant did not disclose homicide he had committed when he entered Australia – he gave reason for travel to Australia as business trip on the incoming passenger card in contradiction of actual motive  – Applicant did not disclose his conviction for homicide to Australian authorities a number of times – Applicant not of good character – decision under review affirmed.

LEGISLATION

Australian Citizenship Act 2007 s 21(4)(f)

CASES

Drake v Minister for Immigration and Multicultural and Ethnic Affairs (No 2) (1979) 2 ALD 63

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR
Shi v Migration Agents Registration Authority (2008) 82 ALJR 1147

SECONDARY MATERIALS

Australian Citizenship Instructions as at 1 July 2014

REASONS FOR DECISION

Ms G Ettinger, Senior Member

5 August 2015

SUMMARY

1. Mr Fernando Barbosa is a citizen of Brazil, aged 67, who first entered Australia in October 2001.  On arrival by air, Mr Barbosa completed the incoming passenger card, and ticked no, to a question asking if he had any criminal convictions, when he had in fact been convicted of a homicide in Brazil in 1986. Mr Barbosa also indicated that he was in Australia on business, and would be staying 10 days, which has since been shown to be false.

2. There were also further instances when Mr Barbosa did not disclose his conviction for homicide in Brazil to Australian authorities in connection with visa applications.

3. On 3 July 2014, a delegate of the Department of Immigration and Border Protection, (the Department), refused his application for citizenship by conferral. The decision made by the Department who is the Respondent in the proceedings before the Tribunal, was to refuse Mr Barbosa’s application for Australian citizenship on the basis of the application of section 21(4)(f) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act), and the finding that Mr Barbosa did not satisfy the delegate that he was of good character. Mr Barbosa applied to this Tribunal seeking review of that decision.

4. I have taken into account the Applicant’s conduct when entering Australia, and the false and misleading information he has provided to the Department over the years, as well as the submissions of his partner, Ms Dianne Nelson, who emphasised his rehabilitation and reforms.

5. Ms Worthy Jennings, who indicated she had been a solicitor for 15 years till she left work one year ago, appeared with Mr Barbosa. She told me she had never worked in immigration law, and in addition to representing Mr Barbosa in a manner, provided a statement (Exhibit A1), in which she made certain value judgments and submissions on his behalf.

6. On the basis of the legislation, the Australian Citizenship Instructions, (ACIs), and the evidence, I have affirmed the decision under review. My reasons follow.

   ISSUE BEFORE THE TRIBUNAL

7. The issue before the Tribunal is whether the Applicant is of good character pursuant to section 21(4)(f) of the Citizenship Act at the time of the Tribunal's decision (Shi v Migration Agents Registration Authority (2008) 82 ALJR 1147).

   LEGISLATIVE FRAMEWORK

8. The relevant legislation in this matter is the Australian Citizenship Act 2007, in particular section 21(4)(f). The ACIs are also relevant. The Tribunal must take Guidelines such as the ACIs into account unless there is a cogent reason not to (Drake v Minister for Immigration and Multicultural and Ethnic Affairs (No 2) (1979) 2 ALD 634). There is no reason not to take the ACIs into account in this case.

9. For the sake of completeness I note that a person may, pursuant to section 21(1) of the Citizenship Act, make application to the Minister to become an Australian citizen. Section 21(2) of the Act provides eligibility, and is qualified by the requirement for good character in section 21(4)(f) (applicable to persons over the age of 60).

10. The Citizenship Act does not define good character. Guidance is found in Chapter 10 of the ACIs which offers guidance on policy in relation to the interpretation of, and exercise of powers under, the Citizenship Act and Regulations in relation to good character. As already stated, the ACIs are Government policy, and should be applied unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs).

11. Good character is an indication of whether an applicant is likely to uphold and obey the laws of Australia, and the other commitments made through the pledge should they be approved for citizenship. In order to decide whether a person is of good character, the Tribunal must consider the nature of any offences, the Applicant’s general conduct, any mitigating circumstances, and weigh up relevant factors, and apply community standards: clause 10.1.2.

12. The ACIs cite Justice Lee in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, as to the meaning of good character. His Honour 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 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 while 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.

13. A non-exhaustive list of characteristics that an applicant of good character would have, are at clause 10.3.4.  The ACIs describe persons of good character as persons who would, amongst other things:

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

    ·be honest and financially responsible;

    ·be truthful in their dealings with the Australian Government, other governments and organisations; 

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

    ·and not be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia.

14. In order to decide whether Mr Barbosa is of good character pursuant to section 21(4(f) of the Citizenship Act, I must make the decision on the basis of all the evidence before me at the time of making that decision (Shi v Migration Agents Registration Authority (2008) 82 ALJR 1147). I have taken into account the legislation and evidence, taken the guidance of the ACIs, and must look holistically at the Applicant’s behaviour over a lasting or enduring period of time. The duration of time to be considered in regard to behaviour is not specified in the ACIs. However, I have noted that the amount of time considered to be lasting or enduring depends on the merits of each case, and will in most cases, will go back prior to any application for citizenship. Mitigating factors such as the length of time between the date of a conviction and the Applicant’s application for citizenship, are relevant.  The ACIs assist by indicating that an applicant’s behaviour does not need to be faultless, but that the aggregate of their qualities must be weighed against ordinary community standards or behaviour.

15. I am also mindful of the further guidance of the ACIs which  has been in effect since 19 November 2013, which follows:

    Length of time since applicant was under obligation to court

    In considering whether a person has a demonstrated pattern of good behaviour since their criminal conviction (a mitigating factor listed in chapter 10 of the ACIs), decision makers should take into account the length of time the person was subject to an obligation to a court (e.g. a good behaviour bond, sentence, disqualification of licence etc.) compared to the length of time the person was free from that obligation and has not re-offended.

    For example: if a person was subject to a 12 month behaviour bond, and the person has not reoffended for an equivalent 12 month period following the expiry of the bond, this may be a factor in favour of finding a renewed pattern of good behaviour.

    BACKGROUND

16. The translation of a Police Report dated 18 July 1992 in the documents before me, indicates that Mr Barbosa was detained in Brazil on a charge of homicide on 1 January 1986. The report indicates that Mr Barbosa was detained for seven months, providing maintenance services to police vehicles, and spending nights at the Police Station during the investigation period.  Following the investigations and trial, he was held to have acted in self defence, and served his sentence on home detention. From 23 July 1986 to 2 March 1991, he provided services to the community and the sports government departments of the State (T12/69, translation by Language Links Ltd, Auckland, 28 November 2007).

17. In contradiction of the above, in a statement provided to the Respondent, however, Mr Barbosa states that he was imprisoned for the period 1 January 1986 to 2 March 1991 as a result of the homicide. (T12/67).

18. The Applicant first entered Australia on 12 October 2001. He completed an incoming passenger card, and in reply to the question: Do you have any criminal convictions? he ticked the box, no.  The Applicant also stated on the passenger card that his intended length of stay in Australia was 10 days, and that the purpose of his entry to Australia was business. In submissions on his behalf, it was put that he was in fact, not on business, but interested in finding out about football in this country.

19. On 11 January 2002, Mr Barbosa lodged an application for a Protection (Class XA) visa with the Department. In that application form, the Applicant again declared that he had never been convicted of a crime or any offence in any country. On 29 July 2002, a delegate of the Department refused to grant the Applicant a protection visa.

20. Mr Barbosa sought review of the delegate's decision at the Refugee Review Tribunal (RRT).  On 31 October 2003, the RRT affirmed the decision under review. The RRT found that the Applicant introduced unreliable and inconsistent evidence into his story in many places, and that he (and his son, who was also a protection visa applicant) provided evidence that was disingenuous and unreliable.

21. The Applicant met Ms Dianne Nelson, now his partner, in 2003. Subsequently in July 2004, he sought Ministerial intervention to substitute a more favourable decision than the decision of the RRT under section 417 of the Migration Act 1958 (Migration Act).  The request was refused on 26 February 2005. He then travelled overseas, and on 19 July 2005 applied to the Department for a partner visa. In that application, the Applicant again stated that he had never been convicted of a crime or offence in any country.

22. Mr Barbosa was informed in December 2006, that the Minister for Immigration and Citizenship intended to examine whether there were grounds to refuse the combined application for a Partner (Provisional)(Class UF) and Partner (Migrant)(Class BC) visa under section 501(1) of the Migration Act 1958. On 28 May 2008, a delegate of the Minister decided that the Applicant did not satisfy the character test under section 501 of the Migration Act 1958, but decided not to exercise the discretion to refuse his visa application.

23. On 23 December 2013, the Applicant applied for Australian citizenship by conferral. On 20 March 2014, a delegate of the Minister wrote to the Applicant inviting him to comment on information relevant to consideration of whether he is of good character for the purpose of s 21(3)(f) of the Act. The delegate noted in regard to Mr Barbosa:

    A)  He was convicted of one count of homicide in Brazil, and was imprisoned from 1 January 1986 to 2 March 1991.

    B)  He failed to declare his criminal conviction to the Department of Immigration and the RRT on at least four occasions between 2001 and 2005.

    C)  He provided false and misleading information to the Department of Immigration and the RRT in 2002.

    ·Mr Barbosa provided a response to the Department on 14 April 2014, addressing these matters. In summary, the Applicant:

    ·conceded that he had been convicted of one count of homicide in Brazil, but stated that while sentenced to a term of imprisonment he actually worked in the community during that period. He argued that the criminal offence was a one off matter, and that he had shown great respect for Australian immigration law;

    ·conceded that he did not disclose his conviction on his incoming passenger card on entering Australia, or in his RRT, or spousal visa applications; blamed other persons for the incompleteness of the RRT application;

    ·disputed that he provided false and misleading information to the RRT;

    ·stated that he understood the responsibilities of an Australian citizen to obey the law, and defend Australia should the need arise.

24. Mr Barbosa also provided translated state and federal police certificates from Brazil, and character references in response to a request made by the Department.

25. On 3 July 2014, a delegate of the Minister refused the Applicant's application for Australian citizenship by conferral on the basis that he did not satisfy the delegate that he was of good character for the purpose of s 21(4)(f) of the Act.

26. Mr Barbosa applied to this Tribunal for review of the decision of the Department to refuse him Australian citizenship on 30 July 2014. 

    WHETHER MR BARBOSA IS OF GOOD CHARACTER AT THE TIME OF THE TRIBUNAL’S DECISION

    The Applicant’s submissions

27. In summary, the submissions on behalf of the Applicant were to the effect that:

    ·he is a loving partner and member of a stable loving family and assists Ms Nelson;

    ·the crime in Brazil was committed in 1968, 47 years ago in self defence, and that Mr Barbosa has committed no crime elsewhere, including in Australia; that because of his good behaviour and educational status he did not serve time in prison;

    ·that the failure to disclose the crime to Australian authorities was out of fear, shame and guilt;

    ·that he feels remorse for the crime, and prays for forgiveness; he does voluntary work;

    ·that he respects Australia and its laws, and the responsibilities of a citizen.

    The Respondent’s submissions

28. In summary, the submissions on behalf of the Respondent were to the effect that:

    ·the ACI’s provide a non-exhaustive list of factors and the integrity of the system relies on truth;

    ·homicide is a serious crime; acknowledgment that it took place a long time ago; Mr Barbosa has demonstrated a lack of insight into the seriousness of the crime, excusing it on the basis that it occurred on his property;

    ·the pattern of non-disclosure to Australian authorities is serious;

    ·many of the referees do not appear to know about the conviction.

    CONCLUSIONS

29. In coming to a conclusion regarding whether Mr Barbosa’s application for citizenship should be granted, I have had to consider whether he is of good character.

30. I am mindful that good character is not defined in the legislation, but relates to the moral qualities of the person. The various indicia relating to good character from the ACIs, explored above are not exhaustive, and the particular circumstances of each case must be taken into account.

31. A non-exhaustive list of characteristics that an applicant of good character would have, are at clause 10.3.4.  The ACIs describe persons of good character as persons who would, amongst other things:

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

    ·be honest and financially responsible;

    ·be truthful in their dealings with the Australian Government, other governments and organisations; 

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

    ·and not be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia.

32. I have considered the above, and have included a consideration of the homicide Mr Barbosa committed in Brazil, noting that I have no information that Mr Barbosa has committed any further crime in Australia or in Brazil. I have noted that Mr Barbosa who is now 68 years old, was 39 years old when he committed the homicide. Mr Barbosa has given his explanation regarding how the homicide took place, and points to the Brazilian authorities accepting that he committed the crime in self-defence.

33. I am mindful that Mr Barbosa did not disclose the homicide on arrival in Australia in 2001, and did not do so on at least four other occasions between 2001 and 2005 when communicating with the Department of Immigration and the RRT.

    Seriousness of the offences

34. The translation of a Police Report dated 18 July 1992 at T12/69 indicates that Mr Barbosa was detained in Brazil on a charge of homicide on 1 January 1986. The report indicates that Mr Barbosa was detained for seven months, providing maintenance services to police vehicles, and spending nights at the Police Station during the investigation period.  Following the investigations and trial, he was held to have acted in self-defence, and served his sentence on home detention. The Police Report indicates that from 23 July 1986 to 2 March 1991, while on home detention, Mr Barbosa provided services to the community and the sports government departments of the State.

35. However in contradiction of the above, in a statement provided to the Respondent, which Mr Barbosa told me was translated into English for him by a friend in London, Mr Barbosa states that he was imprisoned for the period 1 January 1986 to 2 March 1991 as punishment for the homicide. (T12/67).

36. I have noted that at clause 10.3.4 of the ACIs persons of good character are described as persons who would, amongst other things:

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

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

37. Committing a homicide which is a violent act and caused the death of a person, does not indicate that at least on that occasion, Mr Barbosa respected and abided by the law in Brazil.

38. In addition, on arrival in Australia in 2001, Mr Barbosa was untruthful when filling in the incoming passenger card by non-disclosure of the homicide, and in stating that the reason for the visit to Australia was business. In other evidence he has informed the Tribunal that he was in Australia to check out the status of football.  He told me that he was not proficient in English, and sought the assistance of a fellow passenger to complete the incoming passenger card.  I do not find that is a suitable explanation for providing non-truths to authorities.

39. When Mr Barbosa applied for a Protection (Class XA) visa he did not disclose his homicide conviction. When the visa was refused, Mr Barbosa appealed the decision to the RRT. His son was also an applicant. The RRT, in refusing the visa, concluded that:

    … the Applicant father (Mr Barbosa), introduced unreliable and inconsistent evidence into his story in many places, such as when he tried to explain why he left his wife behind and how or why she has remained unscathed.

    …

    … the Applicants’ efforts to depict themselves as nemeses of drug syndicates are disingenuous and unreliable.

1. Clause 10.3.4. of the ACIs, in setting the indicia for persons to be judged as of good character, expect them to be honest and financially responsible, and be truthful in their dealings with the Australian Government. That is not the case here. The T-documents record that Mr Barbosa failed to disclose his homicide conviction to the Department of Immigration and the RRT on at least four occasions between 2001 and 2005. He was also found to have provided false and misleading information to the Department of Immigration and the RRT in 2002.

2. These acts lead me towards the conclusion that Mr Barbosa is not of good character, although before coming to a final conclusion I must first take into account several other factors discussed below. I will also take into account the references Mr Barbosa has provided.

   Whether the offences were ‘one-off’ or part of a pattern of behaviour

3. I am unable to say whether the homicide was a one-off. I note from the documents before me that Mr Barbosa has not committed any crime in Australia, and I have no indication he committed other crimes in Brazil or elsewhere.

4. He saw fit however, to state untruths on his incoming passenger card in 2001, and further non-disclosure of his homicide on application forms and to the RRT.

   Whether there were any extenuating circumstances

5. Mr Barbosa argued that the homicide took place under a situation of self-defence as held by the authorities in Brazil. Document T12 is a letter of Mr Barbosa dated 14 April 2014, and addressed to the Department of Immigration. Attachment 1 to that letter is dated 23 March 2006 and expresses various sentiments about the homicide as follows:

   The conviction occurred long time ago at a time when Brazil was a very violent and corrupt country.

   …

   I was obviously naïve and foolish in my decision not to disclose this (conviction) to both the Department of Immigration and to Dianne [Dianne Nelson, his partner in Australia].

   …

   I paid for my sins.

   … I would like to clarify that I do not have any debt to the Brazilian Justice System but I would ask you to please bear in mind the violence and corruption that existed in Brazil 20 years ago and continues to exist today and try to view my actions at the time in that context.

6. Ms Dianne Nelson, Mr Barbosa’s partner, has assisted him with preparing statements, and Ms Worthy Jennings in preparing the submission which is part of Exhibit A2, Mr Barbosa’s statement. In the submission, Mr Barbosa acknowledges the homicide was a serious crime, but stated that he did not spend one day in prison, and that the Police Report described his excellent social conduct.

   REFEREES

7. A number of persons provided references for Mr Barbosa and some gave oral evidence at the Tribunal.

8. Ms Worthy Jennings, previously a solicitor, who appeared with Mr Barbosa as his friend and spokesperson, spoke for him at the Tribunal, but also gave the Applicant a reference, stating that she found him to be honest, respectful and hardworking, and a loving father and grandfather. She said that she had known him and his partner Dianne Nelson since 2004, and had known about his criminal history since 2006. Ms Worthy Jennings also gave evidence about Mr Barbosa’s difficulties with communication and his lack of skills in English.

9. Mr Mark Whitty gave a warm and personal reference for Ms Nelson in December 2006, and commended her endeavours to obtain a favourable outcome in respect of Mr Barbosa’s application.

10. Ms Sonia Barbosa, the Applicant’s daughter, who states that she was 10 years old at the time when this problem occurred in his life, described her father as a hardworking and honest man who always tried to do the best for his family. Her statement was dated December 2006.

11. Mr Paulo Fonesca wrote in December 2006, that he supported Mr Barbosa’s application for residency. He had known him six months and described the Applicant as a very good person.

12. Ms Daphne Williams wrote in December 2006 that she had knowledge of Mr Barbosa’s conviction, but stated that his spotless record since that time attests to his noble character.

13. Ms Jessica Nelson, daughter of Dianne Nelson wrote praising Mr Barbosa in an undated statement. She stated that she knew of the conviction, and understood from Mr Barbosa what the conditions were in Brazil both formerly, and at the time of writing.

14. Mr Roger Flannery, writing in December 2007, stated that he had full knowledge of Mr Barbosa’s conviction. He praised him for his soccer coaching, strong work ethic, and the close relationship Ms Nelson which Mr Barbosa exhibited.

15. Mr Roseni Laskoski Barbosa provided a reference dated October 2014, on behalf of Associação A Vida Maringá. He stated that they were a non-profit association, and that Mr Barbosa assisted the association, and was the initiator of soccer classes for it.

16. Mr Jair Marques da Silva wrote on behalf of Grêmio Maringá in October 2014 to say that between 1992 and 1994, Mr Barbosa was part of their technical training committee supervising youth teams and responsible for 120 junior players.

17. Mr Madaleno Mello wrote in October 2014 with regard to Mr Barbosa coaching soccer at his son’s school, and praising him.

18. Mr Thiago Da Sila Soares wrote in October 2014, with regard to Mr Barbosa coaching his son at soccer from 1994 – 1999 stating that the Applicant was a good motivator, a person of integrity and a good role model for his son.

19. Mr Marcelo Braga wrote in October 2014, praising Mr Barbosa as a soccer coach for his son.

20. Mr Antonio Fava writing in October 2014, praised Mr Barbosa for his role in soccer coaching, and considered that there was never anything which would discredit his conduct and integrity. 

21. It is only to be expected that referees chosen by a person would provide favourable references. All the referees praised Mr Barbosa’s character.

22. A certain number of the referees did not mention the homicide or appear to have knowledge of it when providing their references, in particular those whose children Mr Barbosa coached in soccer. Therefore those statements are of limited value, and I find that they carry little weight. The references from family members also carry little weight.

23. Ms Nelson wrote on behalf of Mr Barbosa that:

    It is unreasonable to expect a person to disclose a criminal conviction to all people when starting a new life in a very different country. …

24. In deciding this case, notwithstanding the referees who hold Mr Barbosa in high esteem, I must be satisfied that he is of good character within the terms of the legislation, in order to make a decision that citizenship be conferred.

25. Ultimately, for the reasons given above, in particular Mr Barbosa’s pattern of non-disclosure of his criminal conviction to Australian authorities a number of times, and his apparent lack of insight which emanates from how he described extenuating circumstances, I cannot be satisfied that Mr Barbosa can presently be held to be of good character within the terms of the legislation, and application of the ACIs.

26. Mr Barbosa can of course reapply for citizenship which may be granted at a later date. 

    DECISION

27. The Tribunal affirms the decision under review.

I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

...............................[sgd]........................................

Associate

Dated 5 August 2015

Date of hearing	11 May 2015
Applicant	In person
Solicitors for the Respondent	Sparke Helmore