Cole and Minister for Immigration and Multicultural Affairs (Citizenship)
[2025] ARTA 640
•29 May 2025
Cole and Minister for Immigration and Multicultural Affairs (Citizenship) [2025] ARTA 640 (29 May 2025)
Applicant/s: Derick Cole
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2023/6992
Tribunal: General Member S Evans
Place:Sydney
Date:29 May 2025
Decision:The Tribunal affirms the decision under review.
.......................[SGD].................................................
General Member S Evans
Catchwords
CITIZENSHIP - Refusal of citizenship – whether applicant is of good character under section 21(2)(h) of the Australian Citizenship Act 2007 (Cth) – Tribunal not satisfied Applicant is of good character at time of decision – Decision affirmed
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2)(1979) 2 ALD 634
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Irving v Minister for Immigration, Local Government and Ethnic Affairs[1996] FCA 663; (1996) 68 FCR 422
Secondary Materials
Citizenship Procedural Instruction 15 - Assessing good character under the Citizenship Act
Statement of Reasons
Derick Cole (the Applicant) is a 49-year-old citizen of Sierra Leone who arrived in Australia in June 2016 and currently holds a subclass 100 partner visa. On 13 January 2023 the Applicant applied for Australian citizenship by conferral. On 29 August 2023 a delegate of the Minister for Immigration and Multicultural Affairs (the Respondent) refused to approve the Applicant becoming an Australian citizen having found he did not satisfy paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act). The Applicant seeks review of the decision at the Administrative Review Tribunal (the Tribunal).
For the reasons that follow, the reviewable decision will be affirmed.
RELEVANT LEGISLATION AND POLICY
Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. 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.
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.
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 (1996) 68 FCR 422 (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.[1]
[1] (1996) 139 ALR 84, 94
The Respondent department’s citizenship policy provides guidance on the interpretation and application of the good character requirement. The Citizenship Procedural Instruction 15 Assessing good character under the Citizenship Act (CPI 15) identifies the legal requirements and related policy and procedures that apply to the assessment of an application for Australian citizenship. The Tribunal is not bound to strictly apply policy, but as it is government policy it should be considered unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[2]
[2] (1979) 2 ALD 634
Informed by the discussion in Irving, subsection 3.3 of CPI 15 provides 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.
The policy specifically calls for decision makers to consider an applicant in an holistic way; that is, all aspect of their life that may be relevant to consideration of character.
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.
BACKGROUND AND EVIDENCE
In his application for citizenship, in response to the question ‘Has the applicant been convicted of, or found guilty of, any offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any ‘spent’ convictions)?’ the Applicant answered ‘No’.
On 8 June 2023 the Department received a Check Results Report (police check) which indicated the Applicant had two criminal convictions. On 19 June 2018 he was convicted in the Liverpool local Court of Stalk/intimidate intend fear physical etc harm (domestic) – T2 and Assault occasioning actual bodily harm (DV) – T2. The Court sentenced the Applicant to 14 months imprisonment to be served in the community. He was also sentenced to a s9 bond for 18 months for breaching an Apprehended Violence Order (AVO).
The police check also recorded that the Applicant had been fined $500 for unlicensed driving.
On 16 June 2023 the Applicant was sent an email by a delegate enclosing the police check and informing him that the information contained in the police check may be taken into account when assessing his application. The delegate also noted the Applicant had indicated on his application form that he had not been convicted of any offences overseas or in Australia. He was invited to comment on those matters.
On 5 August 2023 the Applicant’s representative provided the Department range of documents including a written submission by the Applicant, three character references, and a statutory declaration by the Applicant dated 3 August 2023. On 14 August 2023 the Applicant’s representative provided the Department a transcript of proceedings in the Liverpool Local Court from 19 June 2018.
On 29 August 2023 a delegate refused to approve the Applicant becoming an Australian citizen because they were not satisfied he was of good character, having been convicted of serious offences contrary to ‘Australian societal values’.
The Applicant’s offences
The 19 June 2019 conviction related to two incidents, the details of which were set out by Magistrate Thompson in his sentencing remarks. The victim of the offending was the Applicant’s now ex-wife.
In relation to the conduct on 8 August 2017, the facts include that you twisted the victim’s right arm, causing her pain, that you removed her phone from her, that you then punched her about the head and the face with both fists. You punched her to the eye area, to her neck and to her left arm. The victim was wearing weaves in her hair. You pulled her hair so hard the weaves began to rip out and you continued punching her again to the face and head. Your partner received significant injuries including bleeding and bruising about her face, neck, arms and chest. Photographs were taken in relation to that.
The later conduct on 15 December 2017 occurred during a period when you were not living together and you had been estranged for some time. At a point in time when you were retrieving property from the premises, you spoke to your wife in an abusive and threatening manner. You called her a prostitute. You told her her mum was dead. You threatened to kill her, saying, “I’m going to stab you. I’m the one who’s going to kill you. I don’t mind if I go to jail”. In the circumstances of saying those comments, you picked up a knife from the dining table and again repeated, “I’m going to kill you”.
They are the facts before the Court on which I am sentencing you. I noticed you shook your head as I read those words. That is the basis upon which I am sentencing you. Those matters are serious and significant and that is why you are facing a jail sentence. You are facing a jail sentence. Having considered all of the circumstances, including the two reports that I have received from Community Corrections, one being a background report and the second being the report in relation to an intensive corrections order and your suitability, I AM SATISFIED THAT THE SENTENCE OF IMPRISONMENT CAN BE SERVED IN THE COMMUNITY. You need to understand, though, this is a sentence of imprisonment. At this stage, you are serving this sentence in the community. If there are breaches of any of these orders, you do not come back before the Court; you will go before the parole board to be dealt with.
Magistrate Thompson determined that the offending was very serious and constituted ‘matters of violence in a domestic relationship that will not be tolerated in this country’. He considered both incidents to be objectively very serious as they were matters of violence in a domestic relationship. He acknowledged that the Applicant had a difficult life, and he was faced with violence on a regular basis in Sierra Leone, but said that neither factor was an excuse for using violence in Australia.
The Court also noted the Applicant had undertaken counselling and sought to reconcile his relationship with his wife. He was sentenced on the basis of having shown some genuine remorse in relation to his conduct and pleading guilty to the offending.
In written submissions and oral evidence at the hearing the Applicant took issue with the offending as described in the sentencing remarks. Regarding the incident on 8 August 2017, the Applicant wrote in part:
There was always arguments for the phone, Applicant and his wife shared one mobile phone and the Applicant wanted to make an urgent call at his workplace, he asked for the phone, wife refused to give the phone and started arguing the phone fell down, Applicant and his wife tried to pick up the phone and both of them were pulling phone, Applicant caught her hand tight without any intentions. Applicant really regret for his action, as he should not have not got angry that led to the terrible incident. Applicant realised that he should have been patient and calm down and not get angry.[3]
[Errors in original]
[3] Applicant’s statement of facts, issues and contentions
The Applicant claims his wife’s report that he was choking her neck for 10 minutes was false and he did not choke her at all. He also denies hitting his wife with his fists or pulling her hair. He also denies hitting or threatening his wife on 15 December 2017.
According to the Applicant, his wife is short tempered and unable to control her anger. He claims she has physically assaulted him in the past using scissors and a jar. To avoid incidents with his wife, the Applicant used to sleep in his car and only returned home to shower. In relation to the incident in August 2017 the Applicant wrote his wife ‘pushed me into the fight for my mobile phone which she held in her hand while I tried to take it from her she was trying to check my messages, both of us lost control and started fighting for the phone.’
Regarding the second incident, the Applicant entered the premises using his own keys. When he entered the house he saw a woman naked in the bedroom. He asked his wife who the woman was. She in turn asked him why he wanted to know, to which he responded he was paying the rent and the rental agreement meant he was liable for anything that happened in the house.
The Applicant had entered the premises to collect his traditional dress as he had an African wedding to attend. He told his wife that he needed the clothes which are being kept in a box in the house. She gave him the box of clothes and the Applicant started checking other boxes which made his wife angry. They began arguing, and the Applicant’s wife abused his parents. This was particularly hurtful, as the Applicant’s parents were killed in front of him. He experienced flashbacks to their deaths and the distressing experience of being unable to save them. In response the Applicant abused his wife’s parents.
The Applicant’s wife called police who attended the house. The Applicant was arrested and taken to the police station where he was interviewed. The police asked him if he had fought with his ex-wife. The Applicant said they had argued but he had not done anything. He was asked if he was guilty and he said no.
The Applicant said that some months later police called and told him to report to Liverpool court on 19 June 2018. When he arrived, he was asked by the presiding Magistrate if he knew why he was there. He told the magistrate he was following the instructions of police who had told him he had been charged with domestic violence because his wife had made a complaint. He told the magistrate he was confused, did not understand what the police had told him and he did not have a lawyer. The matter was adjourned.
The Applicant said he found it difficult to find a lawyer, which resulted in further adjournments. In the interim, the Applicant and his wife had reconciled through members of the Church and she sought to withdraw her complaint. He says she was told by police that she would need to attend court to have the matter withdrawn.
The Applicant’s evidence is that on the day of the hearing, he was advised by his lawyer to plead guilty. He was led to understand pleading guilty would lead to charges being dropped and he would avoid being imprisoned. If he were to contest the charges, he feared he would receive a harsher penalty and run the risk of being deported to Sierra Leone. He writes in part:
I had to take this decision within 10 minutes. I was very nervous and due to my health issues, and very scared and nervous, and as the matter had adjourn for almost 5 times, I took the decision to be Guilty as I did not want to go back to my home town and it would effect my other family members.
[errors in original]
Regarding the breach of the AVO, the Applicant explained his wife had asked him to drive her to Canberra as she was sick and unable to drive herself. At the time, he was not aware the order was in place.
CONSIDERATION
The issue to be determined is whether the Applicant meets the requirements of good character in paragraph 21(2)(h) of the Act. In order to meet the requirement, I must be satisfied that the Applicant is of good character.
The Applicant’s offending involved a violent act occasioning actual physical harm, and a threat of further violence in a domestic violence context. CPI 15 provides that this type of offending is ‘serious’. Although the Applicant entered a plea of guilty for both offences, he maintains the offending did not take place as found by the court, and that there were no acts of physical violence on his part.
Somewhat incongruously, the Applicant also says that since the December 2017 incident he has been remorseful and regrets his offending. He has never behaved like that before, he appreciates how dangerous his offending was and the offence was a one-off. He says he has not offended prior to these incidents in either Sierra Leone or Australia. Except for the AVO breach in December 2017, he has not reoffended.
On reflection, the Applicant considers the conduct which led to the June 2018 convictions was the biggest mistake of his life, but he has learnt from the experience. He is very conscious of road rules and ensures he abides by them. The Applicant said that he was also chastised and shamed by the Sierra Leone community and was excluded from a community festival because he was a bad person who did not know how to care for his wife.
Regarding the Applicant’s claim not to have committed the offences, the Tribunal is bound by the decision of the criminal court and does and is obliged to accept the conviction and its essential facts.[4] In any event, I have considered the Applicant’s claims regarding his culpability for the offending and I do not accept his contentions including that he was not physically violent. In any event, the only evidence which calls into doubt the conviction are statements the Applicant made after he had entered a guilty plea and been sentenced by the court. These statements are not persuasive.
[4] (see HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 at [54])
By way of mitigation, the Applicant has not reoffended. He paid the fines and continues to meet his child-support and tax obligations. He met the conditions of his sentence which included the requirement to report daily.
I have considered the submissions made by the Applicant regarding mitigating factors. The Applicant says medical issues prevent him from working full-time but he maintains paid employment. There is substantial evidence that the Applicant is making a positive contribution to the Australian community, notably through his church.
Seven years have passed since the offending, and he completed his sentence more than four years ago. The Applicant says he has taking care of his family and serving the community. He has matured, and notes that the offending occurred when he was 42 years-old and is now 48.
In relation to his failure to declare his criminal history when making his application for citizenship, the Applicant claims he did not intend to mislead the Department. He says his understanding at the time what that a ‘criminal offence’ meant ‘killing or shooting someone.’[5]
[5] T19 p 181
Based on the explanation provided, I do not accept the Applicant was unaware he had been found guilty of an offence when he made his application. By answering the question on the Citizenship Application form in the negative, the Applicant was dishonest in his dealings with the Government, which weighs against a finding of good character.
Character references were provided by the Applicant’s general practitioner Dr Hardy Lim, his employer Rhys Takaka, and church elder Mohamed Kidron Karoma. Mr Karoma writes that the Applicant has made generous contributions to both the church and wider community. In evidence are statements from Monroe Collins who is a friend of the Applicant and Kenewa Abu Bakr Gamanga, who describes himself as a Sierra Leone community leader. The statements speak to the Applicant’s reliability, compliance and remorse for his offending. I have had regard to the fact the referees acknowledge the Applicant’s offending. That said, they appear to have limited knowledge of the nature of the offences. Mr Koroma, appears to have a detailed understanding of the events, but does not acknowledge the acts of violence.
CONCLUSION
Considerable time has passed since the Applicant’s offending. As the Applicant identified, he has complied with the court’s orders, and I accept he has not been convicted of any further offences. He has made a positive contribution to the community through his paid employment, contribution to family and his church.
I acknowledge the Applicant claims to have matured since the offence and he has ‘become wise, responsible, courteous’ since offending. However, he denies key aspects of his offending behaviour, despite entering a guilty plea. This casts doubt on his remorse and the effectiveness of his claimed rehabilitation and maturity. To the extent he concedes the offending occurred, he has demonstrated a proclivity to downplay personal responsibility. He has identified his ex-wife’s mental state, his own health condition, his English language skills, legal advice and childhood trauma as contributing to his offending behaviour.
For these reasons, I am of the opinion that a further period of time is required during which the Applicant continues to contribute to the community and not reoffend to demonstrate that he meets the good character requirement for citizenship.
Weighing all the evidence, on balance I am not positively satisfied that the Applicant is of good character at this time, such that he satisfies the requirements of the Citizenship Act.
44. I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of General Member Evans.
........................................................................
Associate
Dated: 29 May 2025
DECISION
For the reasons set out above, the reviewable decision is affirmed.
46. Date(s) of hearing:
47. 27 March 2025
48. Solicitor for the Applicant:
49. Mr Evander Dias
50. Solicitors for the Applicant:
51. William and Nancy Legal
52. Solicitor for the Respondent:
53. Mr Rogan O'Shannessy
54. Solicitors for the Respondent:
55. Mills Oakley
0
2
0