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

[2021] AATA 1362

Binamu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1362 (4 May 2021)

Division:GENERAL DIVISION

File Number(s):               2020/3926

Re:Wayne Binamu

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:4 May 2021

Date of written reasons:        18 May 2021

Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal decides that the decision under review, being the decision of the Respondent dated 13 May 2020 is set aside and is remitted with the direction that the Applicant satisfies paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

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

Emeritus Professor P A Fairall, Senior Member

Catchwords

CITIZENSHIP – application for citizenship by conferral – good character requirement –– affray – stalking – intimidation and damage to property – plea of guilty – good behaviour bond – denial of guilt – traffic offences – decision set aside and remitted.

Legislation

Australian Citizenship Act 2007 (Cth) s 21

Cases

HLJW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 689

Secondary Materials

Australian Citizenship Policy Statement

Citizenship Procedural Instruction (CPI) 15 - Assessing good character under the Citizenship Act 2007

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

18 May 2021

1. On 17 August 2018, Mr Binamu applied for citizenship.

2. On 13 May 2020, a delegate of the Respondent (delegate) refused the application for conferral of Australian citizenship because the Applicant did not satisfy good character requirements under paragraph 21(2)(h) of the Act. The decision was based on the Applicant's criminal convictions, which are set out below.

3. On 29 June 2020, Mr Binamu applied for review of the Delegate’s decision.

4. I have decided to grant the application and remit the matter to the Respondent for further processing on the basis that the Applicant satisfies the requirements of 21(2)(h) of the Act.

   LEGISLATION AND POLICY FRAMEWORK

5. I refer to my recent decision in HLJW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 689,[1] for a discussion of the relevant framework and incorporate it into this decision.

   [1] HLJW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 689 at [30] – [36].

   The issue for determination by the Tribunal is whether the Applicant meets the good character requirement in paragraph 21(2)(h) of the Act. This is to be assessed at the time of the Tribunal decision.

   It is well established that for the purposes of assessing “good character" under the Citizenship Act, the words refer to the “enduring moral qualities of a person”.

   I note the relevance of the Australian Citizenship Policy Statement and Citizenship Procedural Instruction (CPI) 15 - Assessing good character under the Citizenship Act 2007 (the Instruction), the latter of which states, under the heading “Procedural Instruction”:

   Good character refers to the enduring moral qualities of a person. A person who is of good character is likely to uphold and obey the laws of Australia and the other commitments made when making the Pledge of commitment should they be approved to become an Australian citizen.

   This Instruction provides a framework for assessing an Applicant under the ‘good character’ provisions. Decision-makers must:

   •consider any character issues that arise on the facts of a case;

   •consider all relevant information;

   •guard against bias;

   •be mindful that the requirement to be of ‘good character’ does not mean that a person must be of ‘perfect character’;

   •be mindful that a person who may not have been of good character can become a person of good character;

   •continue to assess the character issues until satisfied, on a reasoned basis, having regard to the available evidence that an Applicant is, or is not, of good character.

   In most cases, it would not be appropriate to automatically conclude that a person is not of good character based on the fact that the person has been convicted of an offence. A full assessment is required.

   The policy set out in this Instruction should not be applied rigidly or inflexibly. It is important to remember that, where a discretionary power is conferred in the Act, it should be exercised bearing in mind the facts of any particular case. This Instruction provides guidance to decision-makers but it cannot fetter any statutory discretion conferred by the Act.

   [emphasis added]

   Paragraph 4.3 of the Instruction provides:

   4.3 What is good character

   Definition

   The term ‘good character’ is not defined in the Act. The Federal Court (FC) and the Administrative Appeals Tribunal (the AAT) have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs ((1996) [1996] FCA 663; 68 FCR 422; at 431-432):

   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.

   The phrase ‘enduring moral qualities’ encompasses the following concepts:

   ·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.

   The good character requirement necessitates consideration of an Applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.

   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.

   Given the significance of the grant of Australian citizenship, the assessment of the Applicant’s character is an important component in the Minister’s decision to approve or refuse the Applicant’s citizenship application.

   [emphasis added]

   Paragraph 4.4 of the Instruction provides:

   4.4 An Applicant who is of good character

   An Applicant who is a person of good character would generally be expected to exhibit the following characteristics. Application of these principles should be considered in light of the facts of the particular case.

   As a general proposition, a person who is of good character would:

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

   ·     be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds pay debts to the Commonwealth);

   ·     not practise deception or fraud in dealings with the Australian Government, or other organisations, for example

   o   intentionally providing false personal information (such as fraudulent work experience or qualification documents) or

   o   other material deception during visa and citizenship applications;

   o   evading immigration control at the border or living unlawfully in the community after their visa ceased, or assisting others to do so, or involvement in people smuggling or trafficking;

   o   knowingly entering into a bogus marriage or pretending to be a de facto partner of another person;

   o   concealing criminal convictions;

   o   fraud against the Commonwealth such as tax fraud or Centrelink fraud;

   o   giving false names and/or addresses to police;

   ·     not be the subject of any extradition order or other international arrest warrant;

   ·     not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example multiple and/or repeated instances of recklessness exhibited by negligent or drink driving, excessive speeding or driving without a licence);

   ·     not associate with persons who are involved in anti-social or criminal behaviour, or who do not uphold and obey the laws of Australia, such as organisations involved in war crimes, criminal gangs, OMCGs or youth gangs;

   ·     not have committed, or been involved in, or associated with war crimes, crimes against humanity or genocide not be involved in terrorist organisations or acts of terrorism overseas or in Australia.

   Application of these principles should be considered in the light of the facts of the particular case and should not be applied rigidly or inflexibly. The above examples are intended only to provide broad guidance to decision-makers about the types of behaviours which might support an adverse conclusion about a person’s character. Ultimately a decision maker must exercise any statutory discretion bearing in mind the facts of any particular case.

   It is also necessary to consider any other information that is relevant to a person’s character such as information provided by an Applicant about his/her family life; for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, and any other matter that is relevant to an assessment of character in the circumstances of a particular case. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. 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.

   [emphasis added]

   Paragraph 4.7 of the Instruction sets out a non-exhaustive range of factors that a decision-maker may take into account in determining whether a person is of good character. It is stressed that the decision-maker must take into account all the relevant facts of the case.

   Paragraph 4.7 also refers to the assessment of the relative seriousness of the offending.

   Assessing the relative seriousness of the offence

   ·Consider the length of the sentence. Longer sentences carry more weight on a person’s character.

   ·Are there any ongoing obligations such as a good behaviour bond? ...

   ·Carefully consider sentencing remarks, as they give an insight into the nature of the offence and the character of the applicant at the time of sentencing. Decision-makers can obtain sentencing information by contacting the Criminal Registrar of the relevant court. Parole reports may also contain useful information...

   ·It may be appropriate to consider whether the offending behaviour is the subject of any Government initiatives on particular types of behaviour, for example domestic violence, OMCGs and youth gangs.

   ·Were there victims of the offence? Were they children, the elderly or the disabled or others who were reliant on, or placed trust in, the Applicant? [emphasis added].

   CONSIDERATION

6. It is uncontested in this case that the Applicant suffers from a serious mental disorder: bipolar disorder.

7. The Applicant believes that this condition was triggered by his contracting cerebral malaria on a trip to Africa in 2005. I note in passing that there is no shortage of medical literature pointing to a link between various psychiatric conditions and cerebral malaria.

8. I note at the outset that Ms Lloyd for the Respondent eschewed any suggestion that the existence of a serious mental illness was of itself fatal on character grounds to an application for citizenship.

9. I note the letter from Dr Don Ramjan dated 14 October 2020. Dr Ramjan says he has known the Applicant for 2 years and 3 months and that the Applicant has attended his medical practice regularly for the past 4 years and 2 months. He attached the Applicant’s medical history (which unfortunately was not before the Tribunal). He said:

   (a)“He was diagnosed with Cerebral malaria in 2005 and was said by family members to have a change in personality since then. And subsequently diagnosed with Bipolar one year later. He has previously had two charges, that he disclosed to me regarding Affray and Stalking in 2014 and 2017. 

   (b)He remains stable on his current medication and self-presents here for regular review and also with the Liverpool COMET team. He is compliant with his medication. He had no recent presentations to Emergency in the last 12 months – last was exactly 12 months ago.

10. I note the letter from Ms Julee Payne, adult community mental hospital, stating that his first admission was in December 2006 for treatment and that he takes oral medication and has a monthly injection.[2]

    [2] T1/8.

11. I also note that he is currently in assisted housing on account of his mental health condition.

12. I also note the many references in the police files to his mental health condition.

13. I also note that the Minister does not contest that the Applicant suffers from bipolar disorder.

14. I also note that the Applicant has insight into his mental illness.

    THE RESPONDENT’S CASE

15. The case as presented by Ms Lloyd for the Minister traverses several issues pointing to a lack of good character:

    oIrregular visa status

    oA lack of candor on his Citizenship Application

    oCriminal Convictions

    oAggressive Behaviour

    Irregular visa status

16. The Respondent’s representative conceded in arguendo that this was perhaps a technical breach and did not add much weight to a finding adverse to the Applicant. I agree.

    Lack of candor

17. The Applicant stated incorrectly that he had not been convicted in Australia and was not subject to parole.[3] He said that he completed the form himself and that it was an innocent mistake.

    [3] T6/109.

18. These statements were contained in his application for citizenship dated 17 August 2018. 

19. There were two false statements. 

20. The first related to whether he had any criminal convictions in Australia or overseas. He said no.

21. The second question focused on whether he was subject to any ongoing proceedings, good behaviour bond and so on. He said no. In fact, he had been sentenced to a good behaviour bond on 27 March 2018 for the incident arising from the breakdown of his living arrangements dealt with below. He had only served 6 months of the 12-month good behaviour bond.

22. In relation to the first false statement, the Applicant said that he thought the question dealt only with overseas convictions. I accept that he had this belief.

23. Regarding the second falsehood, the Applicant said he simply misread the question. He said that he misunderstood the question and apologised. 

24. The Applicant said that he was not trying to mislead and that he answered it to the best of his knowledge, and that it was an honest mistake.

25. This is a potentially very serious matter. Para 4.4 of the CPI specifically refers to this issue. It is exceedingly important that applicants are truthful in their dealings with government. A deliberate falsehood will be in many cases fatal to an application, even where the matter is relatively unimportant. In this case the issues were important – going to an issue essential to a consideration of good character.

26. I will return to this matter later.

    Criminal Offending

27. The offences are as follows:

    1.25 November 2014: Affray 18-month good behaviour bond. Pleaded guilty and was not represented.

    2.3 February 2016: Using an unregistered vehicle $100 fine (This was a strict liability traffic offence).

    3.27 March 2018: Stalking or intimidation with intent to cause fear of physical or mental harm (domestic) - 12-month good behaviour bond

    4.27 March 2018: Destroy or damage property (less than $2,000) - 12-month good behaviour bond

28. In relation to offence 1 (Affray), I am satisfied that his moral culpability is significantly mitigated by his mental illness. I also note that 6 - 7 years have passed since this offence was committed. He was then 26 - 27 years of age.

29. In relation to offence 2 (driving an unregistered car), the Applicant said that he was driving his sister’s car and did not know that it was unregistered. I accept that he did not know that the car was unregistered. It is the only a traffic offence in the record and does not suggest a pattern of non-compliance with Australian law.

30. In relation to offence 3 and offence 4, I note that the Applicant pleaded not guilty to these charges and was legally aided. However, the court records are not before the Tribunal although the convictions are referred to in the national criminal records data base.

31. This offending was associated with a breakdown in his living circumstances and a dispute with his landlord, in whose house he rented a room. There was a row with the male landlord triggered by the visit of someone to the Applicant’s room, which led to some ugly text exchanges between the Applicant and his landlord and ultimately to the charge of stalk/intimidate (domestic).

32. I am satisfied, reading the Police Notes of the incident, that the Applicant’s bipolar disorder played a significant role in the exchange with his landlord.

33. There was a lack of evidence before the Tribunal as to the nature of the property damage, although I note that the charge indicated that it was less than $2,000. 

34. The Applicant said that it was alleged that there was some damage to the floor in the house but that any damage was caused by the visitor.

35. It was most unfortunate that this matter wound up in court at all.

36. Ms Lloyd for the Minister said these offences were serious – because they involved violence.  She said that the Minister did not dispute that the Applicant suffered from bipolar – however, she submitted that there was insufficient evidence to be positively satisfied that the events leading to the events were substantially caused by the Applicant’s bipolar and not due to some aspect of his character, such as being angry and bad tempered.  She said this applied especially to the 2014 offence. 

37. Taken as a whole, I am not satisfied that this record is such as to negate the Applicant’s claim to be of good character.

    Other acts of aggression

38. There are some other acts of aggression, such as the incident on 1 November 2017, which resulted in some damage to a Toyota Yaris.[4] It appeared that he wandered into the traffic in Liverpool Street in the city and fell onto the bonnet of a car, causing an indentation. He was ordered to pay $500 by way of compensation to the victim.

    [4] ST3/195.

39. The Applicant said he was responding to some taunts from teenage boys and became agitated. The Police notes refer to him leaving a bank in a state of agitation.

40. Whatever the precise cause, I am satisfied that the property damage was associated with a manic episode.

    November 2020 (ST3/186)

41. In November 2020 there was an incident with a woman outside Officeworks. They exchanged words. The complainant spoke to the manager of Crunch fitness who provided their contact details. The Police interviewed the complainant who said she did not want action “done by police or provide a statement but only a record of the incident”.

42. The Police interviewed the manager of Crunch who said that the “POI has a mental illness and acts like a child and regular behaves odd in the gym.”

1. The Applicant said that he was talking to the complainant and “she was being rude to me. And I said that if she was a guy it would end in a different way. She went to the police and I walked away”.

2. I note that he was not charged or convicted for any offence arising from this incident.

   Positive evidence

3. The solicitor for the Respondent took me to the Applicant’s school record in Australia, which appears to be a very good record and is devoid of any reference to behavioural issues.

4. I also note his academic achievements, especially in music. He recently completed a graduate certificate in Music majoring in at the Australian institute of Music. He spoke of his hope to do a degree in Business Management in the future.

5. He has provided references from his present and former pastor, his mother, and his mother and a long-term friend. These all speak highly of his character.

6. I note the undated letter from Evone Kamara (friend).

7. The Respondent says that these should be discounted or given reduced weight because they are not in the form of a statutory declaration or on oath.

8. She said that the letter from Dr Ramjan dated 14 October 2020 should be given more weight. However, she said that there was no reference in that letter to any proposed connection between illness and offending. This point was made several times by the Respondent.

9. As to whether his condition was stable, I note the following exchange:

   Q. In October you said you were stable?

   A. At the end of November I had an accident and on 2 December 2020 he had an accident and blacked out…

   Q. Is that consistent with your statement that you have been on his current medication?

   A. Shortly after the letter in October I increased the doses. Look at my behaviour before I used to be before I become diagnosed – I was quite subdued and kept to myself even though I was a sociable person. It is only recently since I was diagnosed that I have been charged…

10. I am satisfied that the Applicant’s offending cannot be divorced from his mental illness – except perhaps for the driving offence – the two are inextricably linked. The Applicant said that in both instances (during the Affray in 2014 and in the Stalking offence in 2018) he was manic and not himself. 

11. There is nothing to suggest that the Applicant has an intrinsically violent personality or is prone to criminal offending. Quite the contrary. He pointed out that from the time of his arrival in Australia as a child until 2014, his record was clean.

12. Against this backdrop, I return to the issue of the misleading information provided by the Applicant in his application for citizenship. Under the circumstances of the present case, and taking account of the fact that the Applicant suffers from a serious mental health condition, and that he completed the lengthy application form unaided, I do not think that this error in the application should be treated as fatal to his application.

13. Overall, I found that the Applicant gave his evidence in a calm and compelling manner. In final submission he told the Tribunal that he was:

    Born and raised in Africa.

    I felt that I belonged to a community

    I felt like I was an outsider and felt like that because of my race

    I had encounters with the police because of my illness

    I have been a positive influence and if I were to get citizenship I would be able to help my family on a higher level

    My mother is taking care of the rest of my family

    Because I am here it takes a lot of weight off her shoulders.

    I believe I am a person of high integrity.

14. I am satisfied that the Applicant has insight into his mental illness and that he will maintain active involvement with his health professionals and remain compliant with his medication.  As noted above, he has considerable insight into his mental illness.

15. I thank the solicitor for the Respondent in putting the case in a fair and balanced way.

16. Overall, I find that the Applicant does satisfy the good character requirements under paragraph 21(2)(h) of the Act.

17. I therefore set aside the decision of the Delegate dated 13 May 2020 and remit the matter to the Department for further processing.

I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

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

Associate

Dated: 18 May 2021

Date(s) of hearing:	4 May 2021
Applicant:	Self-represented
Solicitors for the Respondent:	Sophie Lloyd, HWL Ebsworth Lawyers