Cole and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2023] AATA 4488

Cole and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2023] AATA 4488 (7 December 2023)

DivisionGENERAL DIVISION

File Number(s):      2023/0731

Re:Christopher Cole

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:7 December 2023

Place:Sydney

The decision under review is affirmed.    

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Senior Member A Poljak

Catchwords

CITIZENSHIP – application for Australian citizenship by conferral – whether the applicant is a person of good character under paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) – where the applicant knowingly possessed/controlled a false foreign travel document - where the applicant has driving offences – consideration of relevant material, law and policy – decision under review affirmed

Legislation

Australian Citizenship Act 2007 (Cth)

Cases

Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
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

Secondary Materials

Australian Citizenship [Policy Statement]

Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

Senior Member A Poljak

7 December 2023

1. Christopher Cole, the applicant, is a citizen of Sierra Leone. He first arrived in Australia on 27 July 2013 on a Temporary Spouse (Subclass 309) visa.

2. The applicant has a conviction for Cth- knowingly possess/control false foreign travel document, for which he was sentenced by the Downing Centre Local Court of New South Wales on 26 May 2015, to 140 hours of community service. Additionally, the applicant has a conviction for Drive motor vehicle while licence suspended – 1st off which he was sentenced at the Liverpool Local Court on 9 July 2020 to a $220 fine and 3 months’ disqualification.

3. On 5 May 2022, the applicant lodged an application for Australian citizenship by conferral. He was provided an opportunity to comment on adverse information, being the offences as detailed above.

4. On 10 January 2023, the applicant’s citizenship application was refused as a delegate of the Department of Home Affairs (the Department) was not satisfied that the applicant is of good character, and therefore found that the applicant did not meet the requirement under paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act). This is the decision under review in these proceedings.

   Good character

5. The issue for the Tribunal's determination in this matter is whether the Tribunal can be satisfied that the applicant is of good character, pursuant to paragraph 21(2)(h) of the Act.

6. The term “good character” is not defined in the Act. Guidance can be found in the Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15) and the Australian Citizenship [Policy Statement],(the Policy).

7. The role of the Policy and CPI 15 is to offer guidance on the interpretation of, and exercise of powers, under the Act. Although I am not bound to strictly apply the Policy and CPI 15, it is government policy and should be considered if it is consistent with the Act and unless there are cogent reasons not to do so: ReDrake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

8. As to the definition of good character, Justice Davies of the Full Federal Court said in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at [424-425], [427-428]:

   The question whether a person is or is not of “good character” is primarily an issue of fact. …

   It should also be observed that the term “good character” is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual’s reputation or repute …

   Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention needs to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person’s inherent qualities. I do not suggest that, in the context, “good character” refers to reputation and repute as such. It does not. …

   The drawing of a conclusion by a decision-maker as to whether he or she is satisfied that an applicant for a visa is of “good character” requires the exercise of a value judgment. There are no precise parameters which distinguish “good character” from “bad character”. Although, in general, “good character” can readily be recognised, in a particular case view may differ. It is for the administrative decision-maker, in whom Parliament has reposed the function of making that assessment, to arrive at a decision.

   Justice Lee observed at [431-432]:

   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 while the latter is a review of subjective public opinion…

9. The CPI 15 states the phrase “enduring moral qualities” encompasses concepts of characteristics which have been demonstrated 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 and overseas. Broadly speaking, the good character requirement looks at the essence of the applicant and their behaviour being a manifestation of essential characteristics.

10. In Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8], Deputy President Breen discussed the requirement of good character in citizenship applications:

    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. (Emphasis added)

11. The principles in the CPI 15 should be considered in light of the facts of the particular case and should not be applied rigidly or inflexibly. The CPI 15 provides that it is also necessary to consider any other information that is relevant to a person’s character and any other matter that is relevant to an assessment of character in the circumstances. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include several factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.

    Mitigating Factors and Consideration

12. The applicant's offending is considered to be serious, particularly given that it included dishonest dealings with the Department and Australian authorities.

13. Looking at the applicant’s 2015 conviction for Cth – Knowingly possess/control false foreign travel document, the NSW Police Statement of Facts detail the circumstances of the offence. It provides that the applicant presented at Australian Customs at the Airport and was selected for a baggage exam. He denied to Australian Customs and Border Protection Service (ACBPS) officers that he had any checked-in luggage. The ACBPS officers then confirmed that there was checked-in luggage under his name. ACBPS officers searched the baggage and found a Belgian passport with a picture of the applicant, but a different name and date of birth. The applicant confirmed that these were under his brother’s name and date of birth, and that it was a fraudulent passport.

14. In a pre-sentence report dated 26 May 2015, prepared for the applicant in relation to this offence, it recorded that the applicant explained he had obtained the passport “due to the difficult circumstances in Sierra Leone and concerns for his brother’s safety”.

15. Inconsistent with the above, in a response to the procedural fairness letter, the applicant indicated in a statutory declaration dated 28 December 2022, that ACBPS officers had checked his luggage and that the passport was a fake souvenir he had procured while holidaying in Thailand. At hearing, the applicant stated that the bulk of the contents of his statutory declaration were incorrect and that the errors were his solicitor’s fault.

16. Neither explanation provided by the applicant can be reconciled with the fact that the applicant had his own picture on a passport with his brother’s details.

17. In relation to the applicant’s conviction of Drive motor vehicle while licence suspended – 1st off, the applicant stated in his statutory declaration dated 28 December 2022, that he had been asked by a friend to replace their tyre, and that he then drove the car to test it. The applicant was then pulled over and informed that his licence was expired, of which he was unaware. This account is inconsistent with the information contained in the NSW Police Facts Sheet for the offence which provided that the applicant was observed by the police to be driving in an erratic manner, and, subsequently, was pulled over; Police approached the vehicle and spoke to the [applicant]. Police activated their body worn Camera and recorded the interaction. Police spoke to the [applicant] who stated he had left his licence at home. Police requested the [applicant’s] details and home address. The [applicant] was argumentative with police; and initially gave a false address to the police. After conducting checks, the police found that the applicant’s licence had been suspended and he had been given a suspension notice by the police on 20 December 2019. When police advised the applicant that his license was suspended, he denied that that was the case.

18. The applicant’s driving record is extensive and includes a total of 22 traffic infringements, ranging from driving while on a suspended licence, speeding and to failing to stop at red traffic lights. This demonstrates a disregard for laws that are aimed at protecting users of the road and go to the essential safety of the community. I note that the applicant has completed of a driving course, however, it was only undertaken three years after his driving offence and once the applicant’s application for citizenship was refused.

19. The applicant has further demonstrated a significant disregard for the Australian community and law by breaching bail conditions on three separate occasions in 2020 and 2021. 

20. Summonsed material from the NSW Police includes Police notes detailing instances in which the applicant has had dealings or interactions with the Police. While the Police notes do not amount to criminal convictions, the information does provide some insight into the applicant’s conduct to date. The Police notes indicate that the applicant has a history of aggressive behaviour in a domestic context. The applicant has been charged with numerous offences, as recently as 2022, including common assault, Stalk/intimidate intend fear physical etc. harm (domestic)-T2.  The charges were later withdrawn.

21. The applicant’s partner and young children are all Australian citizens. At hearing, the applicant expressed a sincere desire to obtain his Australian citizenship as he feels like Australia is his home. He said he now attends church and sees a psychologist to deal with trauma from his childhood.

22. It is acknowledged that the applicant has been employed in Australia, has undertaken volunteer work, and has completed some study. The applicant has ties to the community, through his family, friends, church, and community organisations, some of whom have provided character references.

23. Dr Barbara Newtown, clinical psychologist, provided a report dated 27 March 2023 and appeared at hearing to give evidence orally in support of the applicant’s citizenship application. She advised that the applicant was referred for counselling under a Mental Health Care Plan and that he attended on five occasions from July 2022 to March 2023. The applicant was referred to Dr Newtown by his GP, Dr Thiraviarajah, who opined that the applicant was experiencing depression and post-traumatic stress disorder. Dr Newtown opined in her report that the applicant was highly motivated to become a responsible citizen of Australia.

24. Christina Monique Violi, a long-time friend of the applicant, provided a statutory declaration dated 25 March 2023. She acknowledged the applicant’s two criminal convictions and said she was shocked and disappointed. She recorded that the applicant advised the passport incident occurred in Thailand and that it was not intentional. Ms Violi stated that the applicant learnt a hard and valuable lesson from his offending and that he was a family man. She opined that he had a bright future in Australia. 

25. Mahawa Bangura, a friend of the applicant since 2022, advised in a statutory declaration dated 31 March 2023, that the applicant has demonstrated great remorse and has taken responsibility for his actions, and stated that he is of good character for the time she had known him. Limited information is provided in the statutory declaration about the applicant’s criminal offending.

26. The applicant’s partner has provided two statutory declarations and gave evidence orally at hearing in support of the applicant. She described the applicant as a good father. At hearing and in her statutory declaration dated 20 July 2021, she attempted to resile from her Police recorded interview in regard to assault charges laid against the applicant in 2022. She explained that she was pregnant, hormonal and the instigator of the incident.  

27. The character references weigh in favour of a finding of good character, although in a limited capacity. I am not confident, given the applicant’s past history of dishonesty, that the referees who refer to the applicant’s criminal convictions were fully aware of the exact details.

    Decision

28. Overall, having regard to the applicant’s dishonest conduct, his previous convictions, his failure to abide by bail conditions, and the evidence suggesting that he has engaged in aggressive behaviour in a domestic setting as recently as 2022, I am not satisfied that the applicant meets the good character requirements under paragraph 21(2)(h) of the Act.

29. The applicant may apply for Australian citizenship again in the future when he can demonstrate a sufficient period of adherence to Australian laws without the supervision of the Courts and without further offending or recorded instances of concern.

30. The decision under review is affirmed.  

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate

Dated: 7 December 2023

Date of hearing:	1 December 2023
Applicant:	Self-represented
Solicitor for the Respondent:	Mr M Burnham, Sparke Helmore Lawyers