Chowdhury and Minister for Immigration and Border Protection (Citizenship)
[2017] AATA 2982
•6 October 2017
Chowdhury and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2982 (6 October 2017)
Division:GENERAL DIVISION
File Number(s): 2016/2951
Re:Mohibul Chowdhury
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:6 October 2017
Place:Sydney
The Tribunal affirms the reviewable decision of the delegate of the Minister for Immigration and Border Protection to refuse the Applicant’s application for citizenship made on 16 May 2016.
...................[sgd].....................................................
Mrs J C Kelly, Senior Member
CATCHWORDS
CITIZENSHIP – Citizenship Act – Citizenship Policy – Australian Citizenship Instructions – whether applicant is of good character – traffic offences – drug offences – periods of unlawfulness – migration history – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) s 21(2)(h), 24(1)
CASES
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634
SECONDARY MATERIALS
Australian Citizenship Instructions, Department of Immigration and Border Protection, 1 June 2016
Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
6 October 2017
The reviewable decision and issue in the proceedings
The Applicant, Mr Chowdhury, applied for Australian citizenship on 15 November 2015. The delegate of the Minister for Immigration and Border Protection (the Respondent) refused the application on 16 May 2016. The Applicant applied to the Tribunal for review of that decision.
The only issue before the Tribunal is whether it is satisfied that the Applicant is of good character at the time of its decision, as required by s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act). The delegate was not so satisfied when the reviewable decision was made and as such refused the Applicant’s citizenship application pursuant to s 24(1) of the Act.
The delegate applied the Australian Citizenship Instructions during the assessment. On 1 June 2016, the Citizenship Policy came into force.
For the reasons set out below, the Tribunal is not satisfied that the Applicant is of good character and therefore affirms the decision under review.
The law
The Act does not define “good character”. Chapter 11 of the Citizenship Policy (the Policy) provides guidance:
…on the administration of the ‘good character’ provisions under the Act and to define, for administrative purposes, the meaning of ‘good character.[1]
[1] The Policy came into effect on 1 June 2016.
The Tribunal will generally apply a policy unless there are cogent reasons not to do so.[2]
[2] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 640 per Brennan J.
The Policy refers to the definition set out by the Full Court of the Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs:[3]
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 the 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.
[3] (1996) 68 FCR 422 at 431-432.
The Policy also states:
In this context, ‘moral’ does not have any religious connotations. The phrase ‘enduring moral qualities’ encompasses the following concepts:
ocharacteristics which have been demonstrated over a long period of time
odistinguishing right from wrong
obehaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.
The Policy sets out a non-exhaustive list of “Characteristics of good character”. It also provides a “Framework for making ‘good character’ decisions”.
Further guidance to the decision-maker’s task is provided in the Australian Citizenship Instructions (the ACIs) dated 1 June 2016.
The Applicant’s migration background
The following matters are not contentious. They are based on the Applicant’s 30 January 2012 statutory declaration. The Applicant was born in Bangladesh in January 1968. He first arrived in Australia on 27 March 1987 using a passport for a person with a different name and birth date. On arrival, he was granted an entry permit visa until 27 April 1987. On 20 June 1990 he applied for a protection visa which was refused by the Department of Immigration and on review by the Refugee Review Tribunal and on appeal, by the Federal Court of Australia on 29 April 1996. After marrying in 1996, the Applicant lodged an application for a partner visa on the basis of sponsorship by an Australian spouse which was rejected in 2002.
The Applicant legally changed his name from that on the passport he used to enter Australia to his current name on 29 August 1997.[4]
[4] Change of Name Certificate dated 29 August 1997
He currently holds a subclass 151 (permanent) visa that was granted on 3 September 2013.
Consideration of the evidence and findings
In summary, the Respondent contended that the Applicant was not of good character because:
·He did not provide details of all traffic offences of which he had been convicted or found guilty in response to a question in the application form for citizenship he filled out that requested that information, and the offences demonstrate recklessness as to the safety or other members of the community and indifference to the law.
·In addition to those convictions, the Applicant has an extensive history of traffic offences.
·There were a number of aggravating factors concerning his traffic offences.
·He has a history of interaction with NSW Police in relation to possession of an illicit drug, cannabis.
·The evidence does not show that the Applicant is a reformed character or that he is likely to obey the law if granted citizenship or that he has accepted responsibility for his conduct.
·The Applicant was unlawfully in the community during four periods, lasting for a couple of months to two years and seven months and eight years and two months, and did not provide an explanation.
·He provided false information for the purpose of applying for a refugee visa.
·He was employed for an extensive period when he was unlawfully in Australia and did not pay tax
·His claim not to have used cannabis since 2005 is untrue.
·His claim that he was not provided with financial support by his family is untrue.
The Applicant represented himself and gave oral evidence. He provided references and extensive documentation about his health from 2000 until 2017, about his periods of homelessness, and numerous references.
The documents provided by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 included material produced under summons from courts, NSW Roads and Maritime Services, NSW Police Force and extensive information provided to the Department of Immigration and Border Protection in relation to the Applicant’s migration history.
The Tribunal finds that the police and court records before it show that the Applicant has been convicted of the following traffic offences (which have been summarised):
OFFENCE DATE OFFENCE 14 Jun 2014
Use uninsured motor vehicle Use unregistered motor vehicle
Drive whilst suspended
25 Jan 2014 Speeding by more than 20km 8 Oct 2013
Demerit points suspension (ultimately not implemented, placed on good behaviour) 6 Jul 2013 Speeding by more than 10km 14 Mar 2013 Speeding by more than 10km in a school zone 14 Oct 2012 Speeding by more than 20km 25 Jul 2012 Disobey no parking sign (school zone) 9 June 2012 Speeding by less than 10km 12 Jun 2005 Speeding by more than 15km 12 Jun 2005 Drive whilst suspended 12 Feb 2005 Demerit points suspension 26 Aug 2004 Speeding by more than 15km 28 Oct 2003
Demerit points suspension (ultimately not implemented, placed on good behaviour) 28 Sep 2003 Negligent driving 16 Jun 2003 Driver not wearing seatbelt 24 Nov 2002 Speeding by more than 15km 27 Apr 2002 Disobey traffic lights 3 Nov 2001 Disobey traffic lights 7 Mar 2000 Demerit points suspension 28 Dec 1999 Speeding by more than 15km 26 Feb 1998 Disobey traffic lights 14 Jan 1997 Speeding by more than 15km 18 Aug 1993 Demerit points cancellation for offence of 13 Jun 1993 13 Jun 1993 Make unlawful U-turn 8 Mar 1993
Demerit points cancellation for offences of 20/12/92, 17/05/92, 068/06/91 and 09/04/91 25 Feb 1993 Disobey traffic lights 30 Dec 1992 Speeding by more than 15km 23 Dec 1992 Speeding by more than 15km 17 May 1992 Speeding by more than 15km 8 Jun 1991 Disobey traffic lights 27 May 1991 Drive with low range concentration of alcohol 20 Apr 1991 Disobey traffic lights 9 Apr 1991 Disobey traffic lights
The Tribunal accepts that the Applicant was employed in various jobs from 1987 until 1991. He then drove taxis from 1991 until 2005. During the hearing, the Applicant said that he was driving taxis when he was unlawfully in Australia and did not pay tax. He said that he will declare the tax.
The Applicant said that there were a lot of traffic incidents 15 years ago because of speed cameras. The Tribunal notes that the applicant had no traffic offences from 12 June 2005 until 9 June 2012.
The Applicant explained that the last traffic offences occurred when he was homeless in June 2014 and living in a car. He was on the way to Flemington markets to have a shower when the police caught him. He apologised for those offences and said that his other offences were when he was using cannabis and alcohol. He said that he will make sure his medical condition is “OK” before he goes back to Bangladesh for a holiday. He said that there are good health facilities and doctors here and he wants to get married.
The Respondent relied on four records from NSW Police in relation to the Applicant’s possession of cannabis. The most recent was an offence dated 21 July 2015. The court record shows that the matter was dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). That is, the magistrate found that the Applicant was guilty of the offence but did not proceed to record a conviction. The magistrate also ordered that the drug be destroyed.
The other three interactions were:
(a)On 14 October 2012, the Applicant was searched by police and found to be in possession of cannabis residue. He was issued a warning for possession of a prohibited drug.
(b)On 29 March 2011, a drug dog detected that the Applicant was in possession of cannabis. He was issued with a Cannabis Caution.
(c)On 29 June 2007, a drug dog detected that the Applicant was in possession of cannabis. He was issued a Cannabis Caution.
The Tribunal finds that the Applicant disclosed in his application for citizenship, the July 2015 cannabis offence, the three 14 June 2014 traffic offences and the 12 June 2005 driving with suspended licence offence. The question in the application form required disclosure of offences of which the Applicant had been convicted or found guilty “overseas or in Australia, including “all traffic offences which went to court”.
Police records show that the Applicant was issued with infringement notices for the offence of “travel or attempt to travel without valid ticket” and similar offences, on 26 June 2015, 12 February 2010 and 16 November 2007. The Applicant explained that he was not receiving any Centrelink benefits at those times.
The evidence before the Tribunal, including the Applicant’s statutory declaration sworn on 30 January 2012, shows that the Applicant, by whichever name he was known at the time, was unlawfully in Australia during the following periods:
·27 April 1987 to 1 September 1994 (approximately seven years and five months);
·31 July 1996 to 3 September 1996 (approximately one month);
·3 April 1997 to 25 June 1997 (approximately three months);
·29 October 1997 to 31 May 2000 (approximately two years and seven months);
·18 July 2003 to 20 September 2011 (approximately eight years and two months).
The period of unlawfulness from 1987 to 1994 was not referred to by the Respondent in these proceedings. The Tribunal finds that was an omission. In 2011, the Applicant requested the Minister to intervene in his permanent residency application with the assistance of his legal representative. In his statutory declaration sworn 30 January 2012, the Applicant addressed the three lengthy periods of unlawfulness, including that from 1987 to 1994. He claimed that he did not approach the Department of Immigration during those periods because he was scared that he would be sent back to Bangladesh and he did not want to leave his immediate and extended family in Australia to whom he was very close.
The Tribunal finds that he was unlawful for the periods set out above. It does not accept that he did not know that he was unlawful as he claimed during the hearing. The Tribunal finds that he knew that he was not entitled to Centrelink benefits because he was unlawful. He told the Tribunal at various times he was not on such benefits as a reason for some of the incidents of his unlawful conduct.
The Applicant told the Tribunal that he arrived in Australia in 1987 on someone else’s passport and his claim to be a refugee because of his involvement in politics was completely false. His refugee application was ultimately unsuccessful. The Tribunal finds that the Applicant did not disclose to the Minister when he applied for permanent residence that his refugee claims had been false. He said at the hearing that he was not asked that question.
He told the Tribunal that he began using cannabis in Bangladesh when he was 14 which damaged his kidney and shrank his brain. He also said that he abused alcohol. The Applicant claimed that regardless of his offending, he was of good character and that his life in the last ten years was different from before. He said that his marriage had ended in 2005 and he was emotionally distressed until 2011. The Certificate of Divorce shows that the divorce took effect in November 2008. He also claimed that he spent the years 2000 to 2010 in bed. He claimed that traffic offences were not criminal offences but acknowledged that it was the wrong decision to drive a car without a licence.
Numerous references were before the Tribunal, some of which stated that the writer believed the applicant to be of good character. The references do not demonstrate a detailed knowledge of the Applicant’s traffic offence history, his migration history in Australia, or his cannabis addiction, that the Tribunal has found.
Taxis Combined Services Pty Limited wrote to the Applicant on 19 April 2002 advising him of a phone call from one of his passengers and detailing the praise that passenger gave about the Applicant’s service.
Letters from two Bangladeshi community associations are undated, although the certification that the copies are true copies is dated 14 March 2016. Both are in similar terms and state that the Applicant has been a member for six and seven years respectively. They describe the role he has carried out in the organisation and that he has experienced hardship/tough times, but that has not stopped him from participating in the association’s activities. Both conclude with opinions that the Applicant is, among other things, of good character. There were three references from Bangladeshi community leaders and a welfare society provided in support of the 2011/12 migration application. All referred to the Applicant’s volunteer work over various periods of time.
Letters from numerous maternal and paternal cousins, his sister and two brothers were provided in support of the Applicant’s 2011/2012 migration application.
In his 9 March 2016 reference, Mr Potgieter, Mental Health Social Worker referred to two traffic incidents in 2005 and 2014 and said that they “are the only offences” that the applicant has committed in Australia. That is not correct. In his letter dated 2 February 2017, Mr Potgieter wrote that the Applicant had ceased smoking cannabis in 2005, had no criminal records and two traffic offences. That is not correct.
M Greenwood in her letter dated 8 August 2016 referred only to traffic offences in 2005 and 2014, as did Dr Kiril Goring-Siebert in a report dated 21 July 2016, and Mr Ali and Dr Mahbub, relatives of the Applicant, in their letter dated 4 July 2016. The latter also state that the Applicant was suffering badly from kidney disease in 2005 and was very ill. That is not supported by any contemporaneous medical evidence.
The Tribunal gives little weight to the opinion that the Applicant had been “courteous and motivated participant” during two vocational counselling sessions sometime in early 2016. The opinion of a woman about the Applicant’s contribution to an unidentified “Not for Profit” organisation from 2 June 2015 to 6 July 2015 is of little assistance to the Tribunal.
The Tribunal accepts that the Applicant was not entitled to Centrelink assistance for two years after he was granted permanent residence in late 2013. In his 30 January 2012 statutory declaration, he swore that he had a special bond with his family members in Australia and that his two brothers would provide the assurance of support when required. He told the Tribunal that his family had not assisted him financially and that he cannot live with his family because he is not good for the children. He claimed that he loves his nieces and nephews and goes to see them once or twice a month but those families do not like alcohol or marijuana.
The Applicant also said that his brother provided for him for three or four months after he was granted permanent residence in September 2013. The Applicant then got a job at the airport for five and a half months, and also worked as a cleaner in the Apple store building for some time. He said that his brother offered to have him live at his house, which he did for six weeks, but his sister-in-law wanted him to leave. He said that his brother asked a tenant to let the Applicant stay in a shed on a property. The shed had no bathroom facilities.
The Applicant was homeless for periods in 2013 and 2014 and accessed crisis accommodation provided by Mission Australia at times during both those years. He was also assisted by Australian Red Cross in 2013 and St Vincent de Paul in 2015. At the time of the hearing, he was living in community accommodation and was receiving Centrelink benefits.
The Tribunal finds that the Applicant’s claims in his January 2012 statutory declaration about his close relationship with siblings in Australia were somewhat exaggerated. The Tribunal accepts that his sister and two brothers assisted him at that time when he was seeking permanent residency, but does not accept that the bond is as strong as he claimed before or after that time. He lived in difficult circumstances from at least 2005 and in particular at times in 2013, 2014 and 2015, apart from about six months when he was working. He was not greatly assisted by his family members. Dr Korbel, Consultant Forensic Psychiatrist wrote in his report dated 11 July 2014 that the Applicant was estranged from his family.
The Applicant provided many reports related to his health from 2000 to 2017. The content of those reports is generally not relevant to the Tribunal’s consideration of whether the Applicant is of good character. He did seek to rely on some of that material to explain some of his criminal and police history.
The Tribunal makes the following findings. The Applicant has a benign kidney condition for which no specific therapy is required.[5] In his report dated 22 August 2000 Dr Ibels, Consultant Nephrologist, noted that the Applicant had “smoked a large amount of pot” for most of his youth and “only recently has started to decrease this habit”. Dr Ibels also noted that the Applicant’s alcohol consumption was “occasionally heavy”.
[5] Report of Dr Cleland, Consultant Nephrologist, 2 April 2012.
A psychological assessment report dated 8 March 2012 was prepared for the purpose of the 2012 permanent residency application. The Applicant was diagnosed with depression and anxiety. The doctor wrote that the Applicant “was born into a close and supportive family”. As of 13 October 2016, the Applicant’s “main issue” was severe depression and anxiety and chronic pain in head and neck.[6] In a letter dated 14 October 2016, Mr Potgieter, Mental Health Social Worker, reported seeing the Applicant 20 times from 2014 when he was homeless, and that he had become increasingly distressed since the rejection of his application for citizenship, including experiencing suicidal ideation. Mr Potgieter wrote that the applicant presented with symptoms of extremely severe depression, extremely severe anxiety and extremely severe stress. In his 2 February 2017, Mr Potgieter wrote that the Applicant grew up in a severely traumatic home environment which he went on to describe.
[6] Report of Dr Goring-Siebert dated 13 October 2016.
The Tribunal accepts that the Applicant has suffered from depression and anxiety for a number of years. He complains of chronic head and neck pain.
A staff specialist neurologist reported on 19 January 2017 that the applicant had some problems with short-term memory which he believed to be likely related to heavy abuse of marijuana and alcohol in the past. The doctor proposed investigating the Applicant “for a reversible cause of cognitive impairment” through various means. The referral dated 24 May 2016 was from Dr Kiril Goring-Siebert in respect of the Applicant’s “chronic headaches and caput medusa vascular formation found on MRI scan a few years ago”.
The Tribunal accepts that the Applicant has some problems with short term memory.
Reports of investigations such as blood tests, MRIs, CTs and X-rays, and hospital discharge notes do not assist the Tribunal. The matters reported do not demonstrate that the finding has a functional impact on the Applicant. They do not assist the Tribunal in determining whether the Applicant is of good character. That is the case with the MRI finding that the Applicant has a “caput medusa” in the left frontal lobe of his brain, the X-ray evidence of osteoarthritis of the Applicant’s neck and granuloma in the lungs, and findings of corns on his feet.[7]
[7] Letter from Professor John Magnussen to Dr Paul Bowe dated 26 November 2013 about “MRI Brain” and report of Mr Potgieter, Accredited Mental Health Social Worker dated 14 October 2016.
Conclusion
The Applicant used another person’s passport in order to enter Australia in 1987 and made claims for protection that he told the Tribunal were not true. He was unlawfully in Australia for periods totalling 18 and a half years, until September 2013. He worked in Australia during some of the periods during which he was unlawful and did not pay tax. He is now prepared to declare his tax. He has a lengthy history of traffic offences and a long history of cannabis use, including interactions with NSW Police in relation to his cannabis possession. Most recently he was found guilty of possessing cannabis on 21 July 2015, although no conviction was recorded.
The Applicant emphasised that his character had changed since his last offence “on 14 June 2014”.
Taking into account the Policy, ACIs and given the Applicant’s lengthy history as summarised in paragraph 48, the Tribunal does not accept that the Applicant is of good character. In making that finding, the Tribunal has taken into account all his evidence, including his claim of reform, the many references he provided and the views of those people who provided them, including the account of his voluntary community work. It has taken into account the evidence he provided about his health but that does not cause the Tribunal to come to a different conclusion.
Decision
The Tribunal affirms the reviewable decision of the delegate of the Minister for Immigration and Border Protection to refuse the Applicant’s application for citizenship made on 16 May 2016.
I certify that the preceding 51 (fifty -one) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member
........................[sgd]................................................
Associate
Dated: 6 October 2017
Date(s) of hearing: 31 May 2017 Applicant: In person Solicitors for the Respondent: Karwan Eskerie, Sparke Helmore
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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