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

Beamson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1705 (10 June 2021)
Division:GENERAL DIVISION
File Number: 2020/4809
Re:Paul Beamson
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Dr L Bygrave, Member
Date:10 June 2021
Place:Sydney

The decision under review is affirmed.
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Dr L Bygrave, Member
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by conferral – where Minister not satisfied of the good character of the applicant – where applicant has single criminal conviction in Australia – where applicant received custodial sentence – applicant found to not satisfy good character requirement at this time – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 24
CASES
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
SECONDARY MATERIALS
Australian Citizenship [Policy Statement] (27 November 2020)
Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (26 February 2021)
REASONS FOR DECISION
Dr L Bygrave, Member
10 June 2021
INTRODUCTION

The applicant, Mr Paul Beamson, is 40 years old. He is a citizen of the United Kingdom and currently holds a resident return (subclass 155) permanent visa.
On 18 August 2019, Mr Beamson made an application for Australian citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (the Act). This application was refused by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) on 15 July 2020 on the basis that he did not meet the good character requirement in paragraph 21(2)(h) of the Act.
Mr Beamson subsequently applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for review on 11 August 2020.
The matter was heard by the Tribunal in Sydney on 13 April 2021. Mr Beamson had legal representation; he attended the hearing and gave oral evidence by videoconference.
RELEVANT LEGISLATION
Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Pursuant to subsection 24(1) of the Act:
If a person makes an application under section 21, 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 following relevant general eligibility requirement for Australian citizenship:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
…
(h) is of good character at the time of the Minister’s decision on the application. [emphasis added]
Australian Citizenship [Policy Statement] and Citizenship Procedural Instruction 15
The Act does not define the term ‘good character’. However, guidance can be found in the Australian Citizenship [Policy Statement] (the Citizenship Statement), which from 27 November 2020 replaced the policy guidance previously provided in chapter 11 of the Citizenship Policy.
The Citizenship Statement outlines the ‘overarching legislative requirements for the process of becoming an Australian citizen’ and refers to Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15) issued on 26 February 2021 with the purpose to ‘identify the legal requirements, and related policy and procedures, that apply to the assessment of an application for Australian citizenship’ under the Act.[1]
[1] Australian Citizenship [Policy Statement] and CPI 15 – Assessing Good Character under the Citizenship Act, section 1.
Although I am not bound to strictly apply the Citizenship Statement and CPI 15, these are government policies and should be considered unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[2]
[2] [1979] AATA 179; (1979) 2 ALD 634.
The Citizenship Statement sets out the rights and responsibilities of Australian citizenship, observing that:
Australian citizenship is a privilege requiring a continuing commitment to Australia. Australian citizenship is a common bond, involving reciprocal rights and obligations…
Australian citizenship includes the right to:
·apply for an Australian passport and re-enter Australia freely;
·ask for consular assistance from an Australian consulate while overseas;
·vote in federal, state or territory, and local elections;
·vote in a Constitutional referendum or plebiscite;
·seek election to parliament;
·apply for children born overseas to become Australian citizens by descent; and
·apply for a job in the Australian Public Service or in the Australian Defence Force…
The responsibilities of Australian citizenship include obligations to:
·obey the laws of Australia;
·vote in federal, state or territory, and local elections, and in a Constitutional referendum or plebiscite;
·defend Australia should the need arise; and
·serve on jury duty if called to do so.[3] [emphasis added]
[3] Australian Citizenship [Policy Statement], section 3.2.
CPI 15 provides the following policy guidance on the interpretation and application of the good character requirement. The decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs is cited as guidance to the definition of good character:
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 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. [4] [emphasis added]
[4] (1996) 68 FCR 422, 431-432.
CPI 15 further states that the phrase ‘enduring moral qualities’ encompasses concepts such as characteristics that have endured over a long period of time, distinguishing right from wrong, and behaving in an ethical manner including conforming to the rules and values of Australian society.[5] This good character requirement necessitates considering an applicant ‘in a holistic way’ with all aspects of their life potentially relevant to deliberation of their character.[6] I can be satisfied an applicant is of good character if they have demonstrated ‘good enduring/lasting moral qualities’ before and throughout the time the applicant held a visa and their citizenship application process.[7]
[5] CPI 15 – Assessing Good Character under the Citizenship Act, section 3.3.
[6] CPI 15 – Assessing Good Character under the Citizenship Act, section 3.3.
[7] CPI 15 – Assessing Good Character under the Citizenship Act, section 3.3.
The role of the character requirement in a citizenship application is explained by Deputy President Breen in Re Fenn and Minister for Immigration and Multicultural Affairs:
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home. The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.[8]
[8] [2000] AATA 931 at [8].
CPI 15 also sets out a non-exhaustive list of characteristics of good character. Relevant to this application, a person of good character would:
·respect and abide by the law in Australia and other countries; and
·not be violent and not cause harm to others through their conduct.
Notably, CPI 15 states that application of these principles should be considered in view of the facts of the particular case and ‘should not be applied rigidly or inflexibly’.[9] Further, it is necessary to consider other information relevant to the applicant’s character including their family life, employment, work in the community, the time that has elapsed since their offending, whether they expressed genuine remorse for their past wrong-doing, and any extenuating circumstances relating to their offences. CPI 15 articulates this process as follows:
Ultimately, a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.[10]
EVIDENCE
[9] CPI 15 – Assessing Good Character under the Citizenship Act, section 3.1.
[10] CPI 15 – Assessing Good Character under the Citizenship Act, section 4.
The applicant’s criminal record
Mr Beamson’s criminal history is set out in a report from the Australian Criminal Intelligence Commission dated 12 May 2020 as follows:
·Downing Centre Local Court, 8 August 2018. Offence: Affray-T1. Result: Imprisonment: 7 months commencing 08/08/2018 concluding 07/03/2019 suspended on enter bond s 12: 7 months. Continue to seek psychological assistance.[11]
[11] Exhibit T-T6, pages 54-55.
The applicant’s evidence
Mr Beamson made statutory declarations on 15 August 2018 and 4 December 2020, and provided oral evidence at his hearing on 13 April 2021. The following information is relevant to his circumstances and criminal record.
Mr Beamson was born and raised in the United Kingdom before he came to Australia in 2012. He has lived in Australia since 2012, except for short periods of overseas travel, and has been employed on a permanent full-time basis as a field service technician. He has filed copies of Australian Taxation Office assessments for the financial years from 2013–2014 to 2018–2019 that show his income and payment of tax to the Australian government.
Mr Beamson is in a long-term relationship with his Australian partner, Ms ‘A’, and has a close relationship with her family including her three children from a previous relationship. He also has close and caring relationships with his family in the United Kingdom.
In his application for Australian citizenship, Mr Beamson declared the following ‘offences’:
·United Kingdom – ‘drink driving offence’ in August 2000; and
·Australia – ‘charged with assault occasioning actual bodily harm, acquitted of all charges’ in November 2014.[12]
[12] Exhibit T-T3, page 31.
Mr Beamson provided written and oral evidence that he was convicted of driving a motor vehicle with excessive alcohol in the United Kingdom in August 2000 (when he was 19 years old), which resulted in his disqualification from driving for 18 months. Mr Beamson also filed a police certificate and letter issued on 9 June 2020 from the ACRO Criminal Records Office (United Kingdom) stating this conviction has been ‘stepped down’ and so does not appear on his police certificate.[13]
[13] Exhibit T-T7, pages 87 and 116.
Mr Beamson also provided written and oral evidence about charges of assault occasioning actual bodily harm and reckless grievous bodily harm in October 2014. Additionally, legal representatives for both the Minister and Mr Beamson filed police and medical records, and witness statements in relation to these charges. Notably, Mr Beamson pleaded not guilty to the charges on the basis that he acted in self-defence after he was harmed with a knife and the charges were dismissed by the Court.
Mr Beamson’s sole criminal conviction in Australia is his conviction of ‘affray’ in August 2018. In summary, the circumstances of this conviction were that Mr Beamson and a friend consumed alcohol over an extended period at a public establishment. They subsequently had a verbal disagreement that became physical between them both and resulted in Mr Beamson punching his friend twice to his head causing him to lose consciousness.
An extract of Magistrate Viney’s sentencing remarks in the Downing Centre Local Court stated:
Mr Beamson…clearly, you do not and probably nobody can work out what went on this particular evening, whether it is an accumulation of…the pain medication and the amount of alcohol, which was a significant amount…and, clearly, people do not go around causing serious injury to their friends…
I accept that you are a person who comes before the Court with no prior criminal history. All the references speak about you being a lovely man, hard working, diligent in your employment and a good friend to…many people, but this state, in particular, has seen the disastrous consequences of alcohol fuelled violence and that is exactly what this is and to a point with somebody of your [maturity] seriously, should have known that, regardless of what the circumstances, you had had enough to drink… And the result that…one of your best friends suffers what could have been…an horrific injury.
I take into account…your plea of guilty. I accept that you are riddled with remorse for what went on…
I have taken all those matters into account. It is a serious matter and is a matter quite deserving, in my view, of a custodial penalty. I accept that because you are somebody who comes before the Court for the first time, I certainly am prepared to deal with it by way of a suspended sentence, but you need to understand that that is a gaol term. If you find yourself back before this Court on any matter during the currency of the bond that I am just about to place you understand, serving custodial penalty.[14]
[14] Exhibit T-T7, pages 73-74.
Magistrate Viney also determined a condition of Mr Beamson’s bond was that he ‘continue to seek psychological assistance’.[15]
[15] Exhibit T-T7, pages 75-76.
In a letter dated 9 June 2020, Mr Jake Wrightson (registered psychologist) wrote that he was Mr Beamson’s treating psychologist between September 2018 and January 2019. Mr Wrightson stated that Mr Beamson had communicated openly to his employer and family about the ‘affray charge’ and opined ‘the events that lead [sic] him to engage in treatment were a single, out of character event, which was denounced by himself and his family’.[16] Mr Wrightson further recommended that ‘this event in [Mr Beamson’s] life be considered in context of his otherwise highly pro-social and professional activity’.[17]
[16] Exhibit T-T7, page 84.
[17] Exhibit T-T7, page 84
At the Tribunal hearing, Mr Beamson expressed genuine remorse and sincere regret for the situation that led to his conviction of affray in August 2018. He confirmed he had taken pain medication and was heavily intoxicated and still ‘can’t work out what happened’. He remains ‘devastated’ by his behaviour and the subsequent loss of his ‘best mate’. He now limits his alcohol consumption to beer and socialises primarily with Ms ‘A’ and her family. In relation to his consumption of alcohol, Mr Beamson also explained to the Tribunal that the nature of his employment is ‘high risk’ and requires him to adhere to safety standards and protocols including drug and alcohol testing, which he has ‘never failed’.
References in support of the applicant
CPI 15 provides limited guidance about the weight to be attributed to character references, noting only that ‘decision-makers should not attribute less weight to a character reference merely because the text does not contain an explicit statement of support for the applicant acquiring Australian citizenship’.[18]
[18] CPI 15 – Assessing Good Character under the Citizenship Act, section 14.1.
Mr Beamson provided references to verify his good character, including a letter from his employer on 10 June 2020 confirming his full-time permanent employment and a statutory declaration by his manager dated 7 July 2020 that acknowledged his conviction, described his employment position and noted he is ‘dependable, honest and courteous’.[19]
[19] Exhibit T-T8, page 121.
Mr Beamson’s partner, Ms ‘A’, made statutory declarations on 3 July 2020 and 3 December 2020, and provided oral evidence at Mr Beamson’s hearing. Ms ‘A’ observed that Mr Beamson’s ‘actions, which led to him being convicted of Affray, were completely out of…character’ and he ‘was and remains personally distressed, ashamed and deeply regretful of his actions and the consequences of his actions on his friend’.[20] Ms ‘A’ also told the Tribunal about the close relationships Mr Beamson has with her family as a partner, step-dad and friend.
[20] Exhibit A2.
CONSIDERATION
The sole issue for determination by the Tribunal is whether Mr Beamson satisfies the requirements of good character in paragraph 21(2)(h) of the Act. Guided by the Citizenship Statement and CPI 15, I now weigh all the factors relevant to Mr Beamson’s character including his employment, family life, remorse and any extenuating circumstances relating to his offence.
I find that Mr Beamson has been employed on a permanent full-time basis and paid taxes since he arrived in Australia in 2012. References regarding his employment and the written and oral evidence of his partner, Ms ‘A’, describe him in extremely positive terms.
In relation to Mr Beamson’s history of criminal offending, I note he declared in his application for Australian citizenship that he was convicted of driving a motor vehicle with excessive alcohol in 2000. I place limited weight on this offence in my consideration of Mr Beamson’s good character due to the extensive period of time that has passed (almost 21 years) and because this conviction has now been ‘stepped down’ and is no longer recorded on his police certificate in the United Kingdom.
I have also considered the charges of assault occasioning actual bodily harm and reckless grievous bodily harm made in 2014, noting that Mr Beamson was questioned extensively at the Tribunal hearing about the circumstances surrounding these charges. Ultimately, I place no weight on the extent to which these charges reflect on Mr Beamson’s character because the Court considered all the relevant evidence and decided in November 2014 to dismiss these charges. In these circumstances, it is not appropriate for me to make findings about Mr Beamson’s character that are inconsistent with this decision by the Court.
Finally, I consider Mr Beamson’s conviction of affray by the Court in August 2018. I accept the evidence of Mr Wrightson – and, indeed, Mr Beamson and Ms ‘A’ – that Mr Beamson’s behaviour that led to this conviction was out of character. I also accept that Mr Beamson acknowledges the seriousness of this conviction and has expressed remorse and regret. Nonetheless, Mr Beamson’s behaviour that resulted in his conviction of affray less than three years ago was violent and caused harm to another person: this behaviour is explicitly described in CPI 15 as inconsistent with the qualities held by a person of good character. I further note that the sentencing remarks of Magistrate Viney emphasised that, despite accounting for Mr Beamson’s remorse, employment and friendships and first-time-offence, the seriousness of his offending behaviour deserved a custodial penalty. Based on these circumstances, I find that Mr Beamson is not of good character as required by paragraph 21(2)(h) of the Act at this time.
CONCLUSION

Weighing all the relevant evidence, I am not satisfied that Mr Beamson meets the requirements of paragraph 21(2)(h) of the Act. I note that this conclusion does not preclude Mr Beamson from making an application for Australian citizenship in the future. It may be that with the passage of time, he will be able to demonstrate that he meets the requirements to be granted Australian citizenship.
DECISION
The decision under review is affirmed.

I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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Associate
Dated: 10 June 2021

Date(s) of hearing: 13 April 2021

Solicitors for the Applicant: R Hardy, HARDY LAWYERS

Solicitors for the Respondent: M Donald, SPARKE HELMORE

[2021] AATA 1705

10 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Date(s) of hearing:	13 April 2021
Solicitors for the Applicant:	R Hardy, HARDY LAWYERS
Solicitors for the Respondent:	M Donald, SPARKE HELMORE