Binga and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 3882
•2 October 2020
Binga and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 3882 (2 October 2020)
Division:GENERAL DIVISION
File Number(s): 2019/0351
Re:BINGA, Simpe
APPLICANT
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs And
RESPONDENT
DECISION
Tribunal:Member O'Loughlin
Date:2 October 2020
Place:Adelaide
The Tribunal affirms the decision to refuse the applicant’s application for a grant of citizenship.
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Member O'Loughlin
Catchwords
IMMIGRATION - Conferral of Australian citizenship – citizenship refusal – good character test – drug offences – risk of recidivism – decision affirmed.
Legislation
Australian Citizenship Act 2007
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634Singh and Minister for Immigration and Border Protection [2016] AATA 1020
Secondary Materials
Australian Citizenship Policy
Australian Citizenship Instructions
REASONS FOR DECISION
Member O'Loughlin
2 October 2020
The applicant lodged an application for conferral of Australian citizenship on 19 October 2016.
On 30 October 2018 a delegate of the Minister for Home Affairs decided to refuse the application because the applicant did not meet certain criteria contained in the Australian Citizenship Act 2007 (the act).
The applicant sought review of the delegate’s decision by this Tribunal. The matter was heard on 14 November 2019.
Preliminary matter
One criterion which delegate found the applicant did not meet was that contained in subsection 24 (6) (f) which relevantly prohibits approval of an application to become an Australian citizen where an applicant is subject to a bond as a condition of release from serving the whole or part of a sentence of imprisonment.
The representative of the respondent agreed that that consideration no longer applies at the time of the Tribunal’s review. The Tribunal will not therefore review that aspect of the delegate’s decision.
The delegate had also found that the applicant did not satisfy the so-called “good character” criterion set out at paragraph 21 (2) (h) of the act.
The matter proceeded as a consideration of that criterion.
Legal framework and guidance
Section 21 of the act relevantly provides as follows;
Application and eligibility for citizenship
(1) A person may make an application to the Minister to become an Australian citizen.
General eligibility
(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.”
The respondent observes that “good character” is not defined in the act but submits that relevant guidance is provided in the Australian Citizenship Policy (the policy) and directs the Tribunal’s attention to an extract contained the T documents[1] starting at page 55.
[1] Exhibit R1.
The respondent submits that “the AAT should have regard to the policy unless there are cogent reasons why it should not: Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634.”
The respondent further notes that the Australian Citizenship Instructions, which was the guidance that was generally replaced by the policy, continues to operate side-by-side with the policy unless it and the policy are inconsistent, in which case the policy prevails. In support of this contention the respondent cites Singh and Minister for Immigration and Border Protection [2016] AATA 1020 and various AAT decisions cited therein.
The respondent characterises chapter 10 of the instructions entitled “Character” as the relevant part of the Australian Citizenship Instructions.
Implicit in the respondent’s submissions is that there is no relevant inconsistency between the policy and the Australian Citizenship Instructions.
The Tribunal generally accepts the respondent’s submissions in relation to the status of the policy and the Australian Citizenship Instructions.
Factual Background and Evidence
The applicant gave evidence that he was born in the Democratic Republic of the Congo on 26 November 1991.
He said that he grew up in neighbouring Burundi where he lived until he was about 7 or 8 years old.
He said that the family went to Zambia then Namibia and then South Africa. He said that at that stage he was with his mother, stepfather and his stepbrother.
After staying in South Africa for about 6 years he came to Australia where he was reunited with his father. At that stage he was 16 or 17 years old.
He said he lived with his father for about a year before he moved out. At that stage he was in about year 11 at high school. He said he did all of year 12 while living on his own.
He said that he liked school but that after it was over, he had trouble finding work. He had moved into shared accommodation while he was in year 12. He was over 18 when he was studying year 12 and he started to drink alcohol occasionally.
When he was finished school and was out of work and unable to find a job, he started to drink more. He said that he would drink with his friends.
The applicant was asked about a number of offences largely related to alcohol. Included in the T documents[2] is a “check results report” that was apparently obtained by the respondent on the 25th of October 2017 which sets out the convictions recorded against him until that date.
[2] Exhibit R1, pp115-116.
The applicant was about the first of the offences that were dealt with in the Magistrates Court at Elizabeth on 18 January 2012.
The applicant agreed that he did year 12 in 2012 and he thought that the offences to which those convictions related had occurred in 2012.
There was some discussion about the date of the offences. Although this question was not resolved the applicant was adamant the offences had been committed in 2012 even though that only allows a maximum of 18 days for the charges to have been brought and dealt with.
The date of the offences is not important. What is clear is that on 18 January 2012 the applicant was convicted of an aggravated offence of driving without due care and further with an offence of driving with excess blood alcohol.
The applicant was asked about the next group of offences that were dealt with at the Holden Hill Magistrates Court on 15 September 2013. The applicant gave evidence that he remembered the day of his conviction but was less clear about the circumstances of the offending.
He understood that he’d been convicted of driving with excess blood alcohol and contravening a condition of his probationary licence because of his alcohol consumption.
On that occasion his driver’s licence had been disqualified for 30 months and 4 days.
It was put to the applicant that on 23 June 2014 he was convicted for driving while under disqualification, but he said that he did not remember that.
The next conviction was in the Tasmanian city of Launceston on 7 September 2015. The applicant said that he had applied for work in Tasmania and got a job in a meat factory, so he moved there. He said that he stayed for about 6 months and that he thought that the offence occurred towards the end of that time.
He was not affected by alcohol at the time of the offence in Tasmania, but he was still subject to the disqualification that had been imposed in 2015. He said that he did not drink as much while is living in Launceston because he was working. He said that he does not generally drink as much when he is working.
The applicant said that he left Launceston because he could not get to work without driving.
He returned to Adelaide where he looked for work. He said that he was drinking heavily although not every day. He estimated that he would not drink heavily more than 4 times a week.
It was put to him that on 24 July 2017 he entered a plea of guilty to an offence of contravening mandatory alcohol interlock scheme conditions, a driving offence involving making a U-turn, and breaches of his probationary conditions. He said that he had a beer in the car with him which he understood was the contravention of his conditions.
He further gave evidence that at that stage his car had been fitted with an alcohol interlock and explained that that was a device that requires the driver to provide a negative breath sample in order to start the engine of the car.
The Tribunal notes that at that stage the applicant’s driver’s licence was disqualified for 3 years to 23 July 2020.
The final offences were dealt with at the Elizabeth Magistrates Court on 8 August 2017, about 2 weeks later. He was charged with driving with excess blood alcohol, driving under disqualification or suspension, failing to comply with the direction to stop, and hindering police.
He was convicted and sentenced to 3 months and 2 weeks imprisonment, to various fines and an additional 12 months drivers licence disqualification was added to the existing disqualification that had been due to finish on 23 July 2020.
The Tribunal observes that the applicant will not be entitled to hold or obtain a driver’s licence until 23 July 2021.
The applicant gave evidence that he spent some time at Cadell and at Yatala prison. The precise amount of time served by the applicant is not clear though and it appears that he was released on 21 September 2017.
Included in exhibit A4 is a memorandum prepared by Bethany Giles dated 9 September 2019. The applicant advised that Ms Giles is a social worker who was involved in supervising him in the time after he was released from prison on a bond.
He said that he saw her weekly (although her memorandum says fortnightly) and that he was tested for alcohol and he was counselled and referred to organisations who may be able to help him.
He gave evidence that he did not retain the services of any outside agencies because in about November 2017 he got work at the Royal Adelaide Hospital and he was confident that he could deal with his alcohol problems himself.
He had earlier given evidence that he did not drink as much when he had a job and he agreed that this was still the case and said that since he had been working at the hospital alcohol had not been as serious a problem.
Ms. Giles’ memorandum certainly does suggest that the applicant was compliant with the conditions of his bond during the 12 months she was supervising him. It is not clear to what extent her monitoring included monitoring of his alcohol use, but she appears to accept his reported alcohol abstinence which she says demonstrates significant insight into the problems alcohol consumption has caused him.
There is no evidence before the Tribunal of further offending after those matters that were dealt with in the Elizabeth Magistrates Court on 8 August 2017.
There is no evidence before the Tribunal of the applicant undertaking any programs to help him deal with alcohol although the applicant asks the Tribunal to accept that he has been successful in overcoming his problems with alcohol by himself.
The applicant gave evidence that he does not drink much anymore and that it had been a while since he had been drunk. He said that he hopes to keep working at the hospital for a while and thinks that there should be work there for him.
He said that his work involves both cleaning and some patient assistance. He said that he is also now doing a pathology collection course and was hoping to do a Bachelor of Social Science at the University of SA but that he is not eligible for HECS support unless citizenship is conferred upon him.
The applicant also said that he has moved away from Elizabeth where he had been living and did not see much of his old friends, so it is easier for him to avoid alcohol.
The applicant was cross-examined about his offences both before and after he filled out the application for Australian citizenship form on 22 September 2016.
The applicant agreed that by September 2015, about a year before he made his application for Australian citizenship, he had been dealt with by the courts 4 times and was well aware that he had been convicted of offences.
He agreed that on page 25 of the form[3] he ticked “no” in response to the first question which asked whether he had been convicted of any offences in Australia. The applicant agreed that he understood that question and conceded that his response was a lie.
[3] R1 p83.
He proffered as an explanation for that that perhaps he thought that the offence was not serious or that he just ticked “no” in response to every question. When he was specifically asked whether he had ticked “no” because he knew that a “yes” answer would hurt his application, he said he was not sure that that’s the case.
Consideration
The applicant applied for Australian citizenship in September 2016.
The Tribunal is satisfied that at the time he made his application he had 2 convictions for driving offences involving alcohol, one conviction for driving whilst under disqualification, further conviction for a similar offence in Tasmania due to driving while his licence was suspended, and convictions for some other driving offences.
In his application the applicant denied that he had any such convictions. He conceded that that denial was false and offered in evidence and in written statements provided to the Department by way of explanation that he did not understand that these convictions were important or relevant.
The Tribunal further observes that after those convictions the applicant was convicted of further offences related to driving and involving alcohol. Those further offences resulted in fines, licence disqualification and a short period of imprisonment.
The most recent offences of which the Tribunal is aware were dealt with in August 2017. There is no information before the Tribunal to establish when those offences took place.
The applicant asserts that he now drinks much less than he did at the time of the offences and that since November 2017 he has been in full-time employment. He says he is confident that he will be able to maintain the control he has asserted over his drinking and criminal driving behaviour.
The applicant has not held a licence to drive since 24 July 2017 and will not regain his licence until late July 2021.
It seems clear that in the past the applicant has been prepared to drive while his licence was under disqualification. There is nothing before the Tribunal to suggest that he has done so since the offences that were dealt with on 8 August 2017.
The applicant gave evidence that in the work he does now at the Royal Adelaide Hospital he does not need to drive either in the course of his work or in order to commute.
The applicant submits that he has demonstrated that he understands the seriousness of his past offending and that he has put that behaviour behind him.
The respondent submits that the applicants offending history occurred over a period of 5 years and demonstrates selfish disregard for the law. The respondent further submits that the type of offending is contemplated by the policy as not indicative of good character and further that the pattern of offending is objectively serious.
The Tribunal acknowledges that the policy, under the heading “characteristics of good character”[4], provides that an applicant of good character would be truthful in their dealings with the Australian government and not, for example, practice concealment of convictions that could lead to the refusal of citizenship.
[4] Exhibit R1 at p59.
The policy further refers to “recklessness exhibited by negligent or drink driving, excessive speeding or driving without license or insurance”.
The respondent invites the Tribunal to consider the Australian citizenship instructions and in particular that page 2 of chapter 10 concerning character at about .5 on that page where decision-maker is directed to consider whether there is a pattern of criminal behaviour noting “… A pattern of behaviour, even of repeated minor offences, shows a disregard for the law and indicates that the applicant may not “uphold and obey” the law if citizenship is conferred on them.”
The Tribunal observes that in general, traffic offences are not specifically included as either “serious” or “minor” in the Australian citizenship instructions. Presumably it is therefore incumbent on the Tribunal to consider particular offences in context in determining where an applicant’s criminal history falls.
The Tribunal notes that the definition of “serious offences” includes offences incurring prison sentences of 12 months or more and that the definition of “minor offences” includes offences which do not lead to a conviction or a sentence.
Presumably there is a middle range of offences including, for example, offences which lead to a conviction and sentence of imprisonment of less than 12 months.
The respondent has referred the Tribunal to several other Tribunal decisions in relation to the seriousness of “drink-driving” offences.
The Tribunal accepts the respondent’s submissions that this applicant has demonstrated a concerning pattern of behaviour and compounded that pattern of behaviour by his failure to declare his offending in his application form.
Having considered the ordinary meaning of the expression “good character”, the guidance in the policy and the guidance in the instructions the Tribunal finds that the applicant’s convictions and his pattern of convictions and his effort to mislead the authorities about the existence of these convictions in his application form or combine to support a finding that at the time of his application the applicant was not relevantly of good character.
Having made that finding the Tribunal should turn its attention to whether there are relevant mitigating factors and whether the applicant may be of good character anyway.[5]
[5] see the instructions chapter 10 page 3.
The mitigating factors referred to in the instructions appear to contemplate a decision being made close to the time of the application for citizenship.
In this matter the application was made over 3 years before the taking of evidence by the Tribunal.
In the intervening time the applicant has served a short period of imprisonment in relation to some further offences but has obtained and maintained full-time employment.
The applicant gave evidence that he has in this time successfully exerted control over his drinking habits. He does not claim to have given up drinking. He effectively says that the drinking patterns that proved destructive in the past have changed.
The Tribunal accepts that the applicant’s behaviour since his release from prison in mid-2017 suggests that he has successfully broken a pattern of offending in relation to driving whilst disqualified.
However, given that the applicant does not appear to have been driving at all during this time, the Tribunal cannot be confident that the applicant has overcome his somewhat cavalier attitude in respect of drink-driving.
The Tribunal is unable to dismiss the chance that the drink driving that has been a significant feature of the applicant’s offending will again manifest when the applicant returns to driving.
In the circumstances it would be premature for the Tribunal to find that the applicant has demonstrated his good character to the extent that it would be appropriate to grant him citizenship.
Decision
The Tribunal affirms the decision to refuse the applicant’s application for a grant of citizenship.
I certify that the preceding 85 (eighty-five) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson.
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Administrative Assistant Legal
Dated: 2 October 2020
Date of hearing: 14 November 2019
Applicant: Self-represented
Respondent’s representative: Mr Cameron Retallick, Attorney Generals Department
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