Butt and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2024] AATA 1263

Butt and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 1263 (27 May 2024)

Division:GENERAL DIVISION

File Number(s):2022/10264      

Re:Taraivini Butt

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member S Evans 

Date:27 May 2024  

Place:Sydney

The decision under review is set aside and the matter remitted to the Respondent with the finding that the Applicant is of good character within the meaning of paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

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

Member S Evans

CATCHWORDS

CITIZENSHIP – Application for citizenship by conferral – delegate not satisfied Applicant of ‘good character’ at time of application - ISSUE: whether Applicant meets requirements of s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) – prior criminal convictions – Driving and Domestic Violence related offences – failure to declare offending on incoming passenger card – Consideration of CPI 15 – Applicant’s enduring/lasting moral qualities – significant contribution to Australian community – person of good character at this time – reviewable decision set aside

LEGISLATION

Australian Citizenship Act 2007 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth)

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) 2 ALD 634

Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13

Lachmaiya v Department of Immigration and Ethnic Affairs [1994] AATA 27

SECONDARY MATERIALS

CPI 15 - Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

Member S Evans

27 May 2024

INTRODUCTION

1. Taraivini Butt (the Applicant) is a citizen of Fiji who first arrived in Australia on 1 April 1989.[1] On 8 May 2007 she became a permanent resident, and on 15 September 2021 she applied for Australian citizenship by conferral. Her application was refused by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) on 17 November 2022. The delegate was not satisfied that the Applicant was of ‘good character’, which is a requirement for eligibility to become an Australian citizen.[2]

   [1] Applicant’s Statutory Declaration 14 April 2023, [1]-[2].

   [2] Ibid, [2]; Applicant’s Statement of Facts, Issues and Contentions (SOFIC), [7], [9].

2. The Applicant seeks review of the delegate’s decision at the Administrative Appeals Tribunal.[3] For the reasons that follow, the reviewable decision will be set aside.

   [3] T-Documents, T2, p.4-10.

   ISSUE TO BE DETERMINED

3. The issue to be determined is whether, at the time of the Tribunal’s decision, the Applicant is of ‘good character’ such that she meets the requirements of paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act).

   LEGISLATIVE AND POLICY FRAMEWORK 

4. Subsection 21(1) of the Act provides that ‘a person may make an application to the Minister to become an Australian citizen’.

5. Subsection 24(1) of the Act provides that ‘if a person makes an application under section 21 of the Act, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen’.

6. Subsection 21(2) of the Act sets out the general eligibility requirements for Australian citizenship. Relevant to this application, paragraph 21(2)(h) of the Act stipulates that the Minister must be satisfied that a person is of ‘good character' to be eligible to become an Australian citizen.

   Determining questions of character

7. The term ‘good character’ is not defined or qualified by the Act. Its meaning was considered by the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (Irving) in the context of the power of the Minister to refuse to issue a visa. Lee J 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 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 whilst 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]

   [4] (1996) 68 FCR 422, at [431]-[432].

8. In determining whether an individual is of good character, the Australian Citizenship Policy Statement, and the Citizenship Procedural Instructions (CPI) provide guidance for decision makers. The policy relevant to this application is found in CPI 15 - Assessing Good Character under the Citizenship Act (CPI 15).

9. Informed by the discussion in Irving, subsection 3.3 of CPI 15 states that:

   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.[5]

   [5] T4, p.55-56.

10. CPI 15 specifically calls for decision makers to ‘look holistically at [an] applicant's behaviour over time and reach a conclusion about the person’s enduring moral qualities’.[6] A person’s enduring moral qualities encompass:

    • 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.

    [6] CPI 15, section 3.3; T4, p.56.

11. CPI 15 reflects government policy and is not binding on the Tribunal. However, it is well established that the Tribunal will apply government policy unless there are cogent reasons not to do so.[7]

    [7] See Re Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 645 per Brennan J, which was cited with approval in Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13, 30 per French and Drummond JJ.

    BACKGROUND

12. When making her citizenship application the Applicant declared she had previously been convicted or found guilty of any offences overseas or in Australia.[8] Applicants are instructed to provide all relevant details and, if the matter relates to a criminal conviction, to stipulate the nature of the offence, full details of the sentence and the dates of any period of imprisonment or other detention. The Applicant stated:

    Even thou I have all my points, still driving. Stopped by a highway patrol (police) saying my licence was dis-qualified without my knowledge I should attend a traffic education. [Which] I did. I loose [sic] points on driving over speed limit.[9]

    [Errors in original]

    [8] T5, p.92.

    [9] Ibid.

13. On 17 October 2022, the Department issued an invitation for the Applicant to comment on adverse information included in her National Police History Check Report.[10] The report revealed that on 16 February 2021, the Applicant had been sentenced to a conditional release order (CRO) without conviction for 12-months for the offence of Drive motor vehicle while licence suspended – 1^st off by Sutherland Local Court. On 18 October 2019, the Applicant appeared in the Downing Centre Local Court where a charge of Drive motor vehicle while licence suspended – 1^st off, which was dealt with by way of a s10 dismissal. On 25 June 2015, the Applicant appeared in the Bankstown Local Court where she was sentenced to a two-year s10 bond and required to comply with an Apprehended Violence Order (AVO) for the offence of Assault occasioning actual bodily harm (DV)-T2.[11]

    [10] T7-T8, p.117-123.

    [11] Ibid, T8, p.123.

14. The Applicant did not respond to the natural justice letter.[12] Absent information about the circumstances of the offences, any rehabilitation, or her present reputation in the community, the delegate refused her application for Australian citizenship by conferral on the basis of her not satisfying subsection 21(2)(h) of the Act.[13]

    [12] Applicant’s SOFIC, [8].

    [13] T3, p.26-37; T6, p.107-108.

    EVIDENCE

15. In addition to giving evidence at the hearing, the Applicant made statutory declarations on 14 April and 14 July 2023. The Tribunal also heard from the Applicant’s daughter Ashley Chambers, and her pastor, Reverend Stanley Harvey.

    The assault conviction  

16. The Applicant said that the June 2015 conviction for Assault occasioning actual bodily harm (DV)-T2 (the assault conviction), related to an incident with her now adult daughter, Ashley Chambers. She said that Ashley, who was 15 years old at the time, had been ‘disobedient and uncooperative’ which had prompted the Applicant to ‘hit her with my open hand on her upper left arm’ in an attempt to discipline her.[14]

    [14] Applicant’s Statutory Declaration 14 April 2023, [5]-[9].

17. The Applicant did not recall her daughter being particularly upset following the incident and confirmed she attended school that day. At school, a teacher noticed a bruise on her daughter’s arm and reported it to police. The Applicant recalls police came to her home and interviewed her. About a month later, she was required to appear in court where she plead guilty to the offence.

18. In a statutory declaration dated 14 May 2023, Ashley Chambers writes she is very close to the Applicant who she sees regularly. She confirmed the Applicant has consistently been involved in her life and the lives of Ms Butt’s other five children. In her statutory declaration Ms Chambers provides an account of the incident which led to the assault conviction which she expanded upon at the hearing.

19. Regarding the assault, Ms Chambers recalls she was in her final year of school and had snuck out of her family home for two nights without her mother’s knowledge. When she returned surreptitiously by climbing through her bedroom window, the Applicant was waiting on her bed. Ms Chambers gave evidence the Applicant became upset and angry and struck her multiple times on various parts of her body not including her face. It was Ms Chamber’s evidence that the assault was the only time the Applicant had physically disciplined her, and confirmed the matter was reported to police by one of her teachers.

    The driving offences

20. In her statement of April 2023, the Applicant confirms she was convicted in 2019 and 2021 for the offence of Drive motor vehicle while licence suspended – 1^st off. On 14 September 2019, she was stopped by highway patrol who asked to see her driver’s license. Upon checking her license, the Applicant was informed her license had been suspended and she was issued a notice to attend court. The Applicant stated that until then she was unaware her license had been suspended.  

21. Regarding the second conviction, the Applicant concedes knowingly driving while her license was suspended. At the hearing she explained that she had lost her license while employed as a healthcare worker conducting home visits.  

    Failure to declare

22. The Applicant did not acknowledge her offending on 10 incoming passenger cards. She answered ‘No’ to the question ‘Do you have any criminal convictions?’ and declared the information she had given was ‘true, correct and complete’ in November 2015, May 2015, June 2016, September 2017, June 2018, January 2020, May 2022, January 2023, May 2023, and December 2023.[15]

    [15] Respondent’s SOFIC, Annexure A.

23. The Applicant did not to disclose the assault conviction and the resultant AVO in visa applications made on 7 February 2018 and 9 February 2023. Asked if she had ever been convicted of an offence in any country she answered ‘No’ and declared that she had provided ‘complete and correct information in every detail on this form’’ In completing the 2023 application, the Applicant also answered ‘No’ where asked if she had ever been the subject of a domestic violence or family violence order or any other order for the protection of another person.[16] 

    [16] Respondent’s SOFIC, [50]-[51].

24. The Applicant does not dispute her failure to declare her convictions. In her July 2023 statutory declaration, she claims not to have disclosed her offending in the 2018 visa application because she was unaware she was required to do so as she had not been sentenced to a term of imprisonment. Her evidence was that she did not disclose her offending in the 2023 visa application because she feared doing so may lead to her visa being cancelled or jeopardise a planned trip to Israel. She said the travel had been paid for and was spiritually significant for her.[17] The Applicant also said she was afraid of being made to return to Fiji in which case she would be separated from her children and grandchildren in Australia.

    [17] Applicant’s Statutory Declaration 14 July 2023, [2]-[4], [6].

25. Regarding the failure to declare all her offences in the citizenship application, the Applicant explained she did not detail the assault conviction because there was insufficient space to do so.

    CONSIDERATION

26. CPI 15 provides a non-exhaustive list of factors and principles that decision makers may consider when assessing whether an applicant is of good character. The factors identified should be considered in light of the facts of a particular case and should not be applied rigidly or inflexibly. They include mitigating factors that indicate a person is of good character despite adverse information and consideration of extenuating circumstances.

27. The Applicant is the mother of six adult children and has resided in Australia for most of her life. The Applicant and her husband separated in 2021. She gave evidence their relationship had broken down long before they separated, but they had chosen to remain together until their youngest child finished school. The Applicant states she was the ‘victim of domestic abuse’ having suffered ‘physical, financial and emotional’ abuse by her ex-husband.[18] She attributes some of her behaviour to ‘significant upheaval and turmoil’ in her ‘relationship and life’.[19] In evidence is an Apprehended Domestic Violence order taken against her husband in July 2023.[20]

    [18] Ibid, [9].

    [19] Applicant’s SOFIC, [32].

    [20] Applicant’s Tender Bundle, p.25-27.

28. The Applicant also gave evidence that she suffers from depression and stress. A referral letter from Dr Don Nguyen states that the Applicant’s offences were out of character and likely caused by significant ‘mental stresses’ she was experiencing. He writes that the Applicant struggled with chronic relationship problems with her husband. Dr Nguyen referred the Applicant to psychologist Samar Dawidar on 8 June 2023.[21] The Applicant said she attends counselling and church regularly and tries to ‘be strong’ for her grandchildren.

    [21] Applicant’s Tender Bundle, p.17-19.

29. Before she and her husband separated, the Applicant maintained two jobs. She was employed full-time at a freight company and worked up to 18 hours each week at an age care facility. After her husband left, the Applicant’s son and grandchildren moved into her home, and she quit her second job to help care for her grandchildren. She currently supports three of her adult children and cares for three of her grandchildren who are residing with her.

30. The Applicant has provided a number of letters of support which speak to her being a caring and hardworking individual.

31. Hodan Hussein met the Applicant at church 20 years ago. She writes that the Applicant was a ‘mother figure’ to her, and that following the death of her own mother, the Applicant ‘looked after me for three years’.[22] Ms Hussein had observed the Applicant acting in a similar capacity for ‘many other young kids who to also lost parents at a young age and/or death with unfortunate situations’. She states that the Applicant is an active member of their church who participates in Homeless Outreach and Women’s Ministry.  

    [22] Ibid, p.21.

32. Reverend Stanley Harvey has provided a statement and gave evidence at the hearing. He confirmed the Applicant is a respected member of the church and a ‘profound’ contributor who volunteers her time to teach new parishioners.[23] Reverend Harvey said she is always in attendance, greets people, contributes financially to the church, and opens her home. She is well liked and respected in the congregation having joined the church in 2008. Regarding the assault conviction, Reverend Harvey said the Applicant had spoken to him about the incident and told him she regretted hurting her daughter.

    [23] Ibid, p.12.

    The driving offences

33. The Applicant claims to be remorseful for her offending and other conduct. She accepts full responsibility for her actions and notes her participation in Road Sense Australia driver training education.[24] She no longer drives after being caught driving while unlicensed a second time. While the nature of the offence is such that the risk to the public is low, I consider that the second driving offence indicates a disregard for the law, and the offences  detract from a positive assessment of the Applicant’s character.

    [24] Ibid, p.8.

    The assault conviction

34. Nearly 9 years have passed since the Applicant was convicted of assault. It was an isolated incident for which she plead guilty. The evidence of the Applicant’s daughter suggests the incident may have been more serious than the Applicant recalls, and I note the offence constitutes family violence. Nonetheless, the sentence was commensurate with offending in the lower range of seriousness and does not preclude a finding of good character.

    Failure to Declare

35. As a general proposition, a person who is of good character would not practice deception when dealing with the Australian Government.[25] The Applicant addressed her failure to declare her offending on incoming passenger cards and visa applications in her July 2023 statement. She writes that she now understands her actions ‘can be seen as dishonest’ and that ‘honesty should always prevail, even in challenging circumstances’. She acknowledges she ‘should have honestly disclosed’ her criminal offending and writes her failure to do so ‘compromised the integrity of the process and violated the trust that should exist in declaring information’ in her application.[26]

    [25] T4, p.57.

    [26] Applicant’s Statutory Declaration, 14 July 2024, [5]-[7].

36. Despite having stated she appreciated the importance of being honest in her interactions with the Australian government in July 2023, the Applicant did not declare her conviction on an incoming passenger card she completed on 16 December 2023.[27] This is not disputed by the Applicant. The Applicant gave evidence that when she returned to Australia for the hearing into her citizenship application, she acknowledged her offending on the incoming passenger card. Consequently, she was taken aside by Australian Border Force agents and feared she would be taken into immigration detention. While her honesty resulted in some stress and inconvenience, she now appreciates it is the only option.

    [27] Respondent’s SOFIC, Annexure A.

37. CPI 15 states there is an expectation that applicants will provide correct information when seeking a government benefit or service and that decision makers should consider all the Applicant’s interactions with the Department including visa and citizenship applications. Where an applicant has knowingly presented incorrect information, this may reflect on a person’s character.[28] It has long been held that a failure to be truthful in dealings with migration officials can constitute evidence that a person is not of good character. In Lachmaiya v Department of Immigration and Ethnic Affairs[1994] AATA 27, the Tribunal observed:

    The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia.[29]

    [28] CPI 15, section 11.1; T4, p.62.

    [29] [1994] AATA 27.

1. The Applicant’s failure to fully disclose her offending was motivated by expedience and a fear of having her visa refused being refused re-entry into the country. The evidence does not support a finding she obtained a benefit to which she was not entitled.

   CONCLUSION

2. I am required to look holistically at an Applicant’s behaviour over time when considering an individual’s moral qualities.

3. The Applicant’s offending is limited and does not preclude a finding she is of good character for the reasons I have set out. The Applicant’s failure to be forthcoming about her offending in her dealings with government officials is of greater concern given the frequency with which it occurred. The explanations she provided do not entirely account for her lack of candour over an extended period of time, even in the context of difficult personal circumstances. A person of good character would be expected to be truthful when interacting with the government, and her failure to do so as recently as December 2023 reflects poorly on her character. However, I accept that the Applicant has learnt from the experience of applying for and being refused Australian citizenship. She has taken responsibility for her actions and declared her offending when she was most recently required to do so by government officials. 

4. I am satisfied that the Applicant has made a significant contribution to her family and the broader Australian community over the 35 years in which she has resided in Australia. She continues to care for her adult children and grandchildren and remains responsibly employed. The Applicant is an active and valued member of her church. She has demonstrated positive attributes over an extended period of time.

5. For these reasons, on balance I am positively satisfied that the Applicant is a person of good character at this time and the reviewable decision will be set aside.

   DECISION

6. For the reasons outlined above, the decision under review is set aside and the matter remitted to the Respondent with the finding that the Applicant is of good character within the meaning of paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

I certify that the preceding 43 (forty - three) paragraphs are a true copy of the reasons for the decision herein of, Member S Evans.

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

Associate

Dated: 27 May 2024

Date(s) of hearing:	15 February 2024
Advocate for the Applicant:	W. J. Milojkovic, Southwest Migration and Legal
Advocate for the Respondent:	C. Bavin, Hunt & Hunt Lawyers