BVML and Minister for Immigration and Border Protection (Citizenship)

BVML and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3699 (4 October 2018)
Division:GENERAL DIVISION
File Number: 2017/6957
Re:BVML
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Dr L Bygrave, Member
Date:4 October 2018
Place:Sydney

The decision under review is affirmed.
.....................[sgd]...............................................
Dr L Bygrave, Member
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – whether applicant is of good character – criminal, traffic and driving offences committed – failure to disclose offences and term of imprisonment – whether any mitigating factors or explanations by applicant outweigh behaviour – character references considered – record of domestic violence incidents – domestic violence inconsistent with community standards of behaviour – applicant unable to satisfy good character requirement – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) s 21(2)(h)
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
Sharma and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 608
SECONDARY MATERIALS
Australian Citizenship Instructions, Department of Immigration and Border Protection, 1 July 2014
Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016
REASONS FOR DECISION
Dr L Bygrave, Member
4 October 2018
INTRODUCTION

The applicant, BVML, is 31 years old and a citizen of the Philippines. He first arrived in Australia on 26 February 2002 on a temporary visa (UF-309) and was granted a permanent migration (spouse) visa as a dependent on 1 July 2003. The applicant currently holds a permanent (subclass BB-155) visa that was granted on 14 July 2015.
On 26 March 2017, the applicant applied for Australian citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (the Act).
The application was refused by a delegate of the Minister for Immigration and Border Protection (the Minister) on 10 November 2017 on the basis that the applicant did not satisfy the good character requirement in paragraph 21(2)(h) of the Act.
On 24 November 2017, the applicant lodged an application for review of that decision with the General Division of the Administrative Appeals Tribunal (the Tribunal).
The matter was heard in Sydney on 27 September 2018. The applicant did not have legal representation; he attended the hearing and gave oral evidence in person.
RELEVANT LEGISLATION AND ISSUES
Subsection 21(2) of the Act sets out the general eligibility requirements for Australian citizenship as follows:
General eligibility
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and (b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister's decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister’s decision on the application. [emphasis added]
The issue for determination by the Tribunal is whether the applicant is of good character as required by paragraph 21(2)(h) of the Act.
Definition of ‘good character’
The term ‘good character’ is not defined in the Act. However, the Citizenship Policy offers guidance on the interpretation and application of the good character requirement. Although I am not bound to strictly apply the Citizenship Policy, it is government policy and should be considered unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[1] Further guidance is provided by the Australian Citizenship Instructions dated 1 July 2014, which detail operational instructions and supplement the Citizenship Policy.
[1] [1979] AATA 179; (1979) 2 ALD 634.
As to the definition of good character, the Citizenship Policy cites the decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs:
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…[2]
[2] (1996) 68 FCR 422 at [431]-[432].
The Citizenship Policy states the phrase ‘enduring moral qualities’ encompasses concepts such as characteristics that have been demonstrated over a very long period of time; distinguishing right from wrong; and behaving in an ethical manner, which includes conforming to the rules and values of Australian society.
This broad definition of the good character requirement looks at the essence of the applicant and their behaviour being a manifestation of essential characteristics. I can be satisfied that an applicant is of good character if they have demonstrated ‘good enduring/lasting moral qualities’ before and throughout their citizenship process.[3]
[3] Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 11, p.146.
In Re Fenn and Minister for Immigration and Multicultural Affairs, Deputy President Breen discussed the requirement of character in a citizenship application:
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.[4]
[4] [2000] AATA 931 at [8].
The Citizenship Policy sets out a non-exhaustive list of characteristics of good character. Relevant to this decision, a person of good character would:
·respect and abide by the law in Australia or other countries;
·not conceal convictions that could lead to the cancellation or refusal of a visa or citizenship; and
·not be violent and not cause harm to others through their conduct.
As set out in the Citizenship Policy, the question for decision makers is whether any mitigating factors and/or explanation provided by the applicant outweighs the behaviour in question. This assessment requires considering an aggregate of qualities and weighing up factors, applying community standards.
Mitigating factors relevant to this matter include whether a person of good character would have behaved the way the applicant did, the amount of time that has elapsed since his offending, whether the applicant has demonstrated that he has upheld and obeyed the law, whether he has accepted responsibility and shown remorse for his conduct, and any extenuating circumstances relating to the offences.
EVIDENCE
Offences
A National Police Check Results Report dated 1 June 2017 shows the applicant has been convicted of the following offences:
·Campbelltown Local Court: 21 February 2006. Offence: Common assault-t2. Result: s 10 bond; 12 months not to assault, molest, harass or otherwise interfere with victim or incite any third party to do so.
·Campbelltown Local Court: 15 March 2006. Offence: Contravene apprehended domestic violence order. Result: imprisonment 9 months non parole period; 6 months suspended on enter s 12 bond. 9 months supervised NSW probation service. Offence: Assault occasioning actual bodily harm-t2. Result: imprisonment 9 months non parole period; 6 months suspended on enter s 12 bond. 9 months supervised NSW probation service and attend domestic violence program.
The offence of 21 February 2006 was called up and the applicant received fine $1,000 and Court costs $130.
·Campbelltown Childrens Court: 16 March 2006. Offence: Common assault-t2. Result: dismissed with caution.
·Liverpool Local Court: 14 June 2007. Offence: Use offensive language in/near public place/school. Result: fine $200 and Court costs $67.
·Campbelltown Local Court: 14 August 2007. Offence: Knowingly contravene prohibition/restriction in order. Result: s 9 bond 12 months and Court costs $70.
·Campbelltown Local Court: 25 October 2007. Offence: Drive on road etc while licence suspended. Result: s 9 bond 12 months, disqualification 12 months.
·Campbelltown Local Court: 19 August 2009. Offence: Stalk/intimidate intend fear of physical/mental harm-t2. Result: fine $400 and Court costs $76.
·Campbelltown Local Court: 25 October 2010. Offence: Common assault (DV)-t2. Result: imprisonment 1 month and 1 day. Offence: Contravene prohibition/restriction in AVO (Domestic). Result: s 9 bond 2 years, supervision NSW probation service.[5]
[5] Exhibit T-T4.
Probation and Parole Service reports before the Tribunal show the applicant breached his good behaviour bonds in 2006 and 2010 because he failed to attend scheduled appointments, and he did not complete the Court-ordered domestic violence program in 2006.[6]
[6] Exhibits T-T15, pages 206-207 and 335-336.
At the Tribunal hearing, the applicant was provided the opportunity to give evidence about his convictions. The applicant stated he ‘could not remember’ some of his offences that led to convictions of common assault in 2006 as the incidents ‘were blurry’. He was shown electronic police records that described incidents where he slapped, punched and kicked his ex-partner, which resulted in her being bruised and bleeding. The applicant accepted he ‘might have slapped’ his ex-partner but said his behaviour was because he was ‘young, naïve, hanging with the wrong crowd and surrounded by drugs’.
At the hearing, the applicant was shown electronic police reports that described his convictions for offences of ‘stalk, intimidate, intend fear of physical/mental harm’ and ‘common assault (DV)’ in 2009 and 2010. He initially stated these incidents were ‘another drama’ between he and his ex-partner, and then acknowledged his offending behaviour was not acceptable. The applicant said his behaviour changed after he spent time in jail in 2010 and submitted he has not been convicted of any criminal offences since then.
The applicant’s record for traffic and driving offences includes ‘driving while suspended’, ‘driving a vehicle without number plate or unauthorised/ obscured/ illegal/ misleading/ altered or incorrectly fixed number plate’, ‘not complying with conditions of provisional licence’, ‘exceeding the speed limit by more than 10 km/h but not more than 20 km/h’, and ‘standing vehicle in disabled parking space without authority’.[7] While these driving and traffic offences are not considered to be serious under the Citizenship Policy, I note that the most recent offence was in December 2017 (ten months prior to this hearing).
[7] Exhibit T-T11.
Failure to disclose offences
The Minister contends that the applicant failed to disclose his offences and his imprisonment in his application for Australian citizenship. The applicant’s response to the following questions in his application were:
Has the applicant been convicted of, or found guilty of, any offences overseas or in Australia?
No
Has the applicant been confined in a prison or in a psychiatric institution by order of a court made in connection with criminal proceedings overseas or in Australia?
No[8]
[8] Exhibit T-T6, page 38.
At the Tribunal hearing, the applicant acknowledged he did not declare his offences or that he had been imprisoned in 2010 in his application for Australian citizenship. However, he considered this was an ‘honest mistake’ and ‘hoped the Department would contact him’ to clarify his answers.
I am satisfied that the applicant failed to disclose his convictions and his confinement in prison in his application for Australian citizenship.
Character references
The Citizenship Policy states that:
…referee reports can shed light upon an applicant’s character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of good character.[9]
[9] Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 11, p.155.
I also have regard to the relevant paragraphs in the Citizenship Policy that give advice regarding the level of weight to be given to references.
The applicant filed character references with the Tribunal, including from friends and his former manager. These references noted the applicant was ‘kind, honest and reliable’; a ‘good contributing member of society’; and has a ‘very friendly personality’.[10] None of these references acknowledge the applicant’s criminal convictions; the applicant told the Tribunal that he had not told these referees about his past offending behaviour as he was ‘embarrassed’.
[10] Exhibits A1, A2 and A3.
The applicant’s ex-partner filed a written statement dated 8 June 2018 and also gave oral evidence to the Tribunal.[11] She accepted there were ‘past troubles’ in their relationship but said they both have now moved forward for the ‘well-being and needs’ of their two daughters who are aged 11 years old and three years old. I acknowledge that the positive evidence about the applicant by his ex-partner was admirable and remarkable, particularly in view of police electronic reports that show police responded to domestic arguments between the applicant and his ex-partner until October 2016.
[11] Exhibit A4.
I am not satisfied that the information in the character references for the applicant outweigh the evidence of his offending behaviour, particularly as three of his written references do not acknowledge his convictions.
CONSIDERATION
The applicant was convicted of serious and violent offences in the Courts between 21 February 2006 and 25 October 2010. These convictions resulted in the applicant receiving fines, good behaviour bonds and a term of imprisonment (one month and one day) in 2010. The applicant did not disclose either his offences or his imprisonment in his application for Australian citizenship.
I accept the Court’s convictions in relation to these offences and am satisfied that these offences are not consistent with the good character requirement in the Citizenship Policy for a person to not be violent and not cause harm to others. I also rely on the decision in Re Sharma and Minister for Immigration and Border Protection, in which Deputy President Constance stated that domestic violence is conduct that is ‘fundamentally inconsistent with the standard of behaviour expected by the Australian community and usually weighs heavily against an individual being of good character’.[12]
[12] [2015] AATA 608 at [37].
The applicant submitted that he should be granted Australian citizenship because eight years have passed since his last criminal conviction, he has lived in Australia since 2002 and his family members are Australian citizens.
I cannot agree. In his evidence to the Tribunal, the applicant downplayed the seriousness of his offending behaviour and excused his actions by blaming the actions of his ex-partner. He displayed limited responsibility and minimal remorse for his offending behaviour, even when reading police records describing incidents that would have been frightening and traumatic for his ex-partner, who is the mother of his two daughters.
I also note the applicant’s history of traffic and driving offences, including his most recent offence in December 2017. These offences are less serious than the applicant’s criminal convictions but indicate the applicant has some disregard for Australia’s traffic laws.
I find the applicant is not of good character at this time. While it has been eight years since the applicant’s last criminal conviction in 2010, electronic police records show police were called to resolve an argument between the applicant and his ex-partner as recently as 20 October 2016. The applicant has provided no evidence that he has completed a rehabilitation program or counselling and provided no insight that he understood the seriousness of his violent behaviour.
CONCLUSION
In considering all of the relevant circumstances and weighing the available evidence, I am unable to make a positive finding of good character for the applicant and for this reason he does not satisfy paragraph 21(2)(h) of the Act.
My conclusion does not preclude the applicant from making a further application for citizenship in the future. It may be that with the passage of time, the applicant will be able to demonstrate that he does meet the requirements for a grant of 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

.........................[sgd]...........................................
Associate
Dated: 4 October 2018

Date(s) of hearing: 27 September 2018

Applicant: In person

Solicitors for the Respondent: Sparke Helmore Lawyers

[2018] AATA 3699

4 October 2018

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Standing

Date(s) of hearing:	27 September 2018
Applicant:	In person
Solicitors for the Respondent:	Sparke Helmore Lawyers