Cyer and Minister for Immigration and Border Protection (Citizenship)
[2018] AATA 3600
•21 September 2018
Cyer and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3600 (21 September 2018)
Division:GENERAL DIVISION
File Number: 2017/5753
Re:Door Deng Cyer
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Senior Member B J Illingworth
Date:21 September 2018
Place:Adelaide
The decision under review is affirmed.
..............................[Sgd]..................................
Senior Member B J Illingworth
CATCHWORDS
CITIZENSHIP – Permanent resident – Application for Australian Citizenship – Application for citizenship refused on character grounds – Whether the applicant was of good character – Previous convictions – Failure to disclose offences – Domestic violence – Application under review affirmed.
LEGISLATION
Australian Citizenship Act 2007
CASES
Drake v Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 442
Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Re Zheng and Minister for Immigration and Citizenship [2011] AATA 304
Re Sharma and Minister for Immigration and Border Protection [2015] AATA 608
Re HSXY and Minister for Immigration and Border Protection [2016] AATA 560
Re Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234; 56 ALD 349; [1999] FCA 1197
SECONDARY MATERIALS
Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016
Australian Citizenship Instructions (Cth) issued 1 July 2014
REASONS FOR DECISION
Senior Member B J Illingworth
21 September 2018
INTRODUCTION
This is an application by Mr Door Deng Cyer (“the Applicant”) to review the decision of the delegate of the Minister for Immigration and Border Protection dated 31 August 2017 refusing the Applicant’s application for Australian Citizenship. The delegate was not satisfied that the Applicant met the test of good character in accordance with s 21(2)(h) of the Australian Citizenship Act 2007 (“the Act”).
The Applicant was self-represented and Ms Butler appeared for the Respondent.
BACKGROUND
The Applicant was born in Sudan on 1 January 1990 and at the time of the hearing was 28 years of age.[1] He arrived in Australia on 3 July 2001 being the holder of a Class BA (sub class 202) Permanent Resident Visa.[2]
[1] Exhibit 1, T2 p 7; T5 p 57.
[2] Exhibit 1, T2, p 7; T5 p 59.
The Applicant was separated from his parents during the war in Sudan and came to Australia with his brother. At the time of their arrival the Applicant was aged approximately 11 years and his brother approximately 21 years.
The Applicant had a former partner in Australia with whom he had a son born in 2014. His son is now 4 years old, and the Applicant has not been in a relationship with his former partner for approximately 3 years.
On 12 September 2016, the Applicant lodged with the Department of Immigration and Border Protection (“the Department”) an application for Australian Citizenship pursuant to s 21(1) of the Act.[3] In Part F of that application, in response to the question whether he had been convicted or found guilty of a criminal offence, the Applicant disclosed one criminal offence, namely, Disorderly Behaviour.[4]
[3] Exhibit 1 T5 p 57-68.
[4] Exhibit 1, T5 p 65.
On 14 November 2016, the Applicant attended his citizenship test appointment at the Department and again disclosed that he had been convicted of one criminal offence of Disorderly Behaviour in 2015, and that he had not committed any other offence before or after that offence.[5]
[5] Exhibit 1, T2 p 9.
On 21 December 2016, an email was sent by the Department to the Applicant[6] attaching a letter headed “Invitation to comment on adverse information – application for Australian Citizenship”.[7] That letter listed the offences contained in the Applicant’s National Police Checking Service Report as follows:
[6] Exhibit 1, T6 p 83.
[7] Exhibit 1, T6 p 84-86.
Disclosable History Source Court Date Offence Result SA Adelaide MC 29/9/2015 Damage property not building or m/v (not graffiti or fire)
Carry offensive weapon or dangerous article at night
Convicted Dismissed without penalty SA Adelaide MC 13/01/2014 Unlawful possession Without conviction Fined $50 SA Pt Adelaide 28/03/2013 Resist police
Disorderly behaviour
Convicted Discharged without penalty SA Adelaide MC 23/11/2010 Disorderly behaviour Without conviction Discharged without penalty SA Adelaide MC 15/03/2010 Disorderly behaviour Without conviction Fined $150 SA Adelaide MC 13/11/2009 Loitering Without conviction Dismissed without penalty NSW Burwood Local Court 27/01/2009 Affray-T1 H 37985984: Dismissed S10
On 22 December 2017, the Applicant responded by email to the Department’s letter[8] as follows:
…I’m writing to give an explanation about the National Police Check Service report about me, well I’m start by saying I’m beyond my past at the moment, I’m a family guy and a father to a son … that is 2 years old and under my support, also I have been working for the past few years and still is under fulltime employment at … shop, which means my life is dedicated to work and nowadays I have no time or intend to get court up in activities I was in trouble for in previous years, like disorderly behaviour and other matters I didn’t mention on my application for the fact that they happened years back, however the reason for my convictions is because at times to times, legal aids always refused my application for them to represent me in court, because my cases were minor to them, and that’s what they were telling me and always advising me to plead guilty in court, so I was most likely to be convicted for my matters because I didn’t have lawyers to represent me, and judges were only hearing one side of my story for my matters which were prosecutors statements with no evidence, and me with no lawyers to represent me,”
[8] Exhibit 1, T7 p 91.
On 31 August 2017, a delegate of the Minister for Immigration and Border Protection refused the application for citizenship.[9]
[9] Exhibit 1, T2 p 7-13.
On 26 September 2017, the Applicant applied for review of the decision.[10]
[10] Exhibit 1, T1 p 1-6.
On 28 February 2018, the Applicant provided the Tribunal with a letter from the Senior Multicultural Community Services Officer being a character reference.[11]
[11] Exhibit 3.
THE RELEVANT LAW AND POLICY
Eligibility for citizenship by conferral is assessed according to s 21 of the Act. If a person makes an application for Australian Citizenship under s 21(1), the Minister must approve or refuse the application pursuant to s 24(1) of the Act. The decision maker is provided guidance by the Department’s Citizenship Policy (“the Policy”) issued by the Minister effective from 1 June 2016.
Section 21(2) of the Act sets out the general eligibility criteria for a person to become an Australian citizen. The section reads 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.
Accordingly, s 21(2) of the Act requires a decision maker, and therefore the Tribunal, to be satisfied that the person is of good character at the time that the decision is being made.
The Tribunal is not bound to apply the Policy, however should give regard to and apply the Policy unless there are cogent reasons not to do so.[12] The Tribunal is not aware of any cogent reason why it should not take the Policy into consideration in this case.
[12] Drake v Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634.
Chapter 11 of the Policy sets out the relevant legislative requirements and policy guidelines for Australian Citizenship where good character is involved. In referencing good character it provides that:
‘Good character’ refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship
In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, Justice Lee said at 431 to 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 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.
The Policy advises that “good character” is to be objectively assessed by reference to “enduring moral qualities” which encompass the following concepts, namely:
(a)That these characteristics have been demonstrated over a long period of time;
(b)Distinguishing right from wrong; and
(c)Behaving in an ethical manner, conforming to the rules and values of Australian society.
The Policy goes on to state:
…the good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.
This broad definition means 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 their migration and citizenship processes.
In Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931, Deputy President Breen discussed the role of the character requirement in a citizenship application and said at [8]:
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 the State.
In Re Zheng and Minister for Immigration and Citizenship [2011] AATA 304, Deputy President Forgie said at [120]:
In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do.
The Policy also provides guidance on weighing up the character decisions. The Policy states:
…Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:
×would a person of good character have behaved the way the applicant did
×what is there to demonstrate that the applicant has upheld and obeyed the law
×has the applicant behaved in accordance with Australia’s community standards
×does the applicant share Australia’s democratic beliefs and respect its rights and liberties.
In considering the operation of the Australian Citizenship Instructions (“the ACIs”), the Tribunal acknowledges the relevant and preferable guide is the Policy, however the ACIs provide operational instructions as of 1 June 2016. In ReHSXY and Minister for Immigration and Border Protection [2016] AATA 560, Senior Member Cotter noted at [13]:
… notwithstanding the introduction of the ACP,… the ACP and ACIs operate side by side as policy and operational instructions. In the event of inconsistency with respect to policy guidance, the ACP is to be preferred.
In addition to the Policy, the ACIs provide a useful non exhaustive list of factors to consider in making an assessment of ‘good character’. I find no inconsistencies between the Policy and the ACIs in this particular context.
This Tribunal has clearly stated that it regards domestic violence as a serious matter which will be given considerable regard when assessing matters such as citizenship applications. In Re Sharma and Minister for Immigration and Border Protection [2015] AATA 608 Deputy President Constance said at [37]:
… The Australian Citizenship Instructions provide that crimes of violence are to be regarded as serious offences. This is particularly so in the case of domestic violence. Such conduct is fundamentally inconsistent with the standard of behaviour expected by the Australian community and usually weighs heavily against an individual being of good character.
Deputy President Constance restated this principle in Re Prasad and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1506 in which he said at [32]:
Domestic violence, in any form and in any circumstances, is fundamentally inconsistent with the standard of behaviour expected by the Australian community.
The fact of criminal offending and the factors to consider was also discussed in Re Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132. Deputy President Wright said at [14]:
When criminal offences have been committed by an applicant they will obviously be taken into account. The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.
ISSUE FOR DETERMINATION
The issue for the determination of this Tribunal is whether the Applicant is of good character pursuant to s 21(2)(h) of the Act.
APPLICANT’S EVIDENCE
The Applicant was born in Sudan and at the time of the hearing was aged 28 years. During the war in Sudan he was separated from his parents and subsequently the Applicant and his elder brother came to Australia when the Applicant was aged 11 years and his brother 21 years.
The Applicant had previously been in a relationship and he and his former partner have a son now aged four years. They separated approximately three years ago.
The former partner lives in Murray Bridge but she refuses to disclose her address to the Applicant. They enjoyed a very acrimonious relationship during which they were both alleged to have been violent to each other.
As at the date of the hearing, the Applicant last saw his son on 7 May 2018. He does not see his son regularly. He has an agreement with his former partner to pay approximately $350 a month for child maintenance when he is working. He expressed an intention to one day attain partial custody of his son.
The Applicant completed his year 12 secondary education in 2008. He had earned a scholarship to attend a private school for his talents in basketball. In 2010 he enrolled in an IT web development course at the University of Hobart, however was unable to complete it. He was struggling financially and needed to work rather than study.
The Applicant is currently working full time and is involved in the Sudanese community. He helps organise events and concerts.
In respect of his written application for Australian Citizenship dated 12 September 2016, the Applicant agreed he only referred to one prior conviction. He failed to disclose the other convictions because he claimed he did not remember the offences at the time, they “happened years back,” and in respect of other offending he did not know whether he was convicted. In any event he was told that the cases were minor.
The Applicant said the offences always occurred in a group of other young men or when the police unreasonably suspected him of offending.
THE OFFENCES
It is important to first note that the Tribunal must accept the essential factual findings made by a sentencing judge in imposing a sentence. The Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234; 56 ALD 349; [1999] FCA 1197 stated at [40]:
It is not open to the Tribunal to engage in any enquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence.
According to the ACIs, minor offences, including charges that led to no conviction or sentence, may be considered with respect to establishing a pattern of behaviour and the Applicant’s respect for the laws of Australia.[13] This is a matter of weight. The Applicant’s insights into these charges, to the extent they are not inconsistent with the sentencing judge’s findings of fact, as well as other mitigating circumstances will be relevant in considering his good character.[14]
[13] Australian Citizenship Instructions, 1 July 2014, Chapter 10, para 10.5.2.
[14] Exhibit 1, T6 p 87-88; summary of the key elements of good character considered by the delegate.
Burwood Local Court 27 January 2009.
In respect of the offence of affray heard in the Burwood Local Court on 27 January 2009, the Applicant said he was not involved. He was an interstate visitor with others from South Australia who were of African and Islander background. The Applicant said his case never proceeded, but he was in the watch house for about one hour. This appears consistent with the endorsement on the disclosable history record namely “DISMISSED,”[15] and I have had no further regard to that alleged offending in determining whether the Applicant is of good character at the time of the of this application.
[15] Exhibit 1, T2 p 9.
Adelaide Magistrates Court 13 November 2009
The Applicant appeared before the Adelaide Magistrates Court on 13 November 2009 charged with the offence of loitering which occurred on 6 September 2009.[16] The Applicant struggled to remember the incident during evidence, then appeared to recall it and said the police had asked him to move on and he had disobeyed their direction. He said he spoke to police because they did not understand the circumstances that they were facing. The Applicant said he was with a group of African people at a community function and celebration. The Applicant said he was in custody for seven hours to sober up.
[16] Exhibit 2, ST1 p 6.
The Applicant’s evidence is consistent with the Criminal Referral Report which states “dismissed without penalty – HH takes into account the time spent in custody.”[17] The Applicant was ordered to pay a Victims of Crime Levy (“V.I.C. Levy”) of $80.00 and $25.00 in prosecution costs. However unlike the offending referred to in paragraph 40, this was not an allegation which did not proceed and was simply dismissed. The words “dismissed without penalty” infers there was misconduct before the court for which a penalty was considered, and in particular having regard to time spent in custody.
[17] Exhibit 2, ST1, p 6.
Adelaide Magistrates Court 15 March 2010
The Applicant appeared before the Adelaide Magistrates Court on 15 March 2010 charged with the offence of Disorderly Behaviour committed on 25 December 2009.[18]
[18] Exhibit 2, ST1 p 5.
The Applicant could not recall this specific incident but nonetheless blamed the police. He said he was in custody for some hours. He said in respect of the police “if you get in their face they will arrest you” and they charge whoever is acting like a leader and asking questions. Nowadays he said if he sees the police he will be quiet and walk away. He said he was young at the time.
Again the record indicates that, taking into account time spent in custody, the charge was dismissed and the Applicant was fined $150.00 and ordered to pay an $80.00 V.I.C. Levy. For the reason explained in respect to the previous offending in paragraph 42, this is another case where there was misconduct properly before the court.
Adelaide Magistrates Court 23 November 2010
The Applicant appeared before the Adelaide Magistrates Court on 23 November 2010 charged with the offence of Disorderly Behaviour committed on 28 August 2010.[19] The Applicant was discharged without penalty and ordered to pay an $80.00 V.I.C. Levy.
[19] Exhibit 2, ST1 p 5.
The Applicant could not recall this incident. He explained his lack of memory. He said that in 2008 he was living with his brother but after graduating from school his brother closed the home and moved interstate leaving the Applicant on his own. The Applicant spent some time couch surfing and moved around including travelling interstate fruit picking. He returned to South Australia but was getting into trouble which included consumption of alcohol. This was his explanation as to why he could not remember what this offence was about, but gave little to no details of the actual offending at or about this time.
Adelaide Magistrates Court 28 March 2013
The Applicant appeared in the Adelaide Magistrates Court on 28 March 2013 charged with the offence of Resist Police and Disorderly Behaviour committed on 30 October 2012.[20] The Applicant was convicted of the charged offences, discharged without penalty and ordered to pay a $480.00 V.I.C. Levy and $100.00 in prosecution costs.
[20] Exhibit 2, ST1 p 4; ST2 p 7-10.
In respect of this offending, the Applicant said he did nothing wrong. He said he had previously been in hospital for nine months having had part of his skull removed which was replaced after 11 months. This head injury, he said, occurred in 2010 when he was hit in the head with a bottle by a group of people. For the period from the date of injury to the date of offending, the Applicant said he wasn’t allowed to drink alcohol. No medical evidence was before the Tribunal to corroborate that fact.
The contents of the police apprehension report[21] were read to the Applicant at the hearing, which included a reference that the Applicant was under the influence of alcohol; he was allegedly on Seaview Road West Beach yelling, swearing and inviting people in the area to fight with him. The Applicant was one of a group of males. The Applicant swore at and abused police. The Applicant was arrested but had to be restrained and forced to the ground to apply handcuffs.
[21] Exhibit 2, ST2 p 8.
The Applicant said the allegations contained in the police apprehension report were lies and he did not use the language attributed to him. He said he was twisting to avoid reinjuring his head and that the Police were hurting him.
The Applicant said that his solicitor advised him to plead guilty. The Applicant was critical of his legal adviser and the Court process.
During cross examination before the Tribunal, the Applicant was questioned about the incident on Seaview Road West Beach. He maintained some of the content of the police incident report was untrue, that he did not remember being told by police to cease loitering but acknowledged that he had a “bit to drink”.
Adelaide Magistrates Court 13 January 2014
On 13 January 2014 the Applicant was again before the Adelaide Magistrates Court charged with the offence of Unlawful Possession committed on 10 August 2013.[22]
[22] Exhibit 2, ST1 p 4; ST 2 p 11.
On this occasion the Applicant was searched by police at or about 9:20pm. They found in his possession a drivers licence and bank cards not attributable to the Applicant. The Applicant lied to the police initially saying the cards belonged to his girlfriend but when he could not name the person on the card he then said that he found a purse at a bus stop, removed the licence and card which he had put into his wallet and left the purse at the bus stop.
During cross examination the Applicant admitted on this occasion he had lied to the police, he was affected by alcohol and he didn’t think it was a “big deal”.
In the sentencing remarks of the learned Magistrate[23] it records that the Applicant pleaded guilty to the offence but the Magistrate noted the Applicant’s explanation, namely, that he was on his way to the police station with the items when he was stopped and searched, was a submission the Magistrate took “with a grain of salt”. The learned Magistrate proceeded without conviction to impose a fine of $50.00 and ordered the Applicant pay a $160.00 V.I.C Levy and $100.00 in prosecution costs.
[23] Exhibit 2, ST5 p 82-83.
Adelaide Magistrates Court 29 September 2015
On 29 September 2015 the Applicant was before the Adelaide Magistrates Court charged with offences including Damage Property and Carrying an Offensive Weapon namely a machete committed on 10 August 2014 at approximately 4:15am in a cocktail lounge in the city.
The apprehension report[24] refers to CCTV footage which it says depicts an altercation involving the Applicant who was seen drawing a machete from inside his right pant leg and raising the machete at the club owner who then stumbles backwards and falls to the ground. The Applicant then struck the wall and picture frame with the machete. I note the reference to the club owner is inconsistent with the sentencing remarks of the learned Magistrate.
[24] Exhibit 2, ST2 p 24.
In his sentencing remarks[25] the learned Magistrate said:
You have pleaded guilty on a basis that I regard with a high degree of suspicion. However…the prosecution takes no issue…”
[25] Exhibit 2, ST6 p 84-86.
The Magistrate thereafter proceeded to sentence on the basis of the submissions namely that the Applicant saw his cousin being attacked by a number of people; there was a machete on the ground in a sheath which he picked up and put in his pants to get it out of the fight; he subsequently withdrew the machete from his pants and threatened others with the machete to stop the attack on the cousin. Then also believing that he himself was being attacked, the Applicant struck the wall with the machete to scare people at which time the mirror, or the picture frame, was damaged.
The Applicant was convicted without penalty having regard to time spent in custody. He was ordered to pay a $295.75 court fee, $480.00 V.I.C Levy and $100.00 in prosecution costs.
In his evidence before the Tribunal the Applicant maintained that he was protecting his cousin and that he found the machete once inside the venue. He said he pleaded guilty on the advice of his solicitor. He said he could not “get away” with three charges. The Applicant said he felt like he was set up in that resolution process.
During cross examination the Applicant blamed the club owner for allowing the machete to be taken into the club. The Applicant said he was never involved in a fight and there was no evidence of his intention to hurt anyone.
Domestic violence history
In addition to the various misdemeanours for which the Applicant was before a magistrate, he had a lengthy reported history of domestic violence related matters involving his former partner. These matters include the Applicant and his partner both being the alleged victim of domestic violence. With respect to these matters, there is no evidence before the Tribunal of either conviction or proven misconduct before the courts.
According to the police apprehension report,[26] in June 2017 the Applicant was served with an interim intervention order arising out of allegations of violence and misconduct by the Applicant towards his former partner. At a hearing on 9 November 2017 in the Elizabeth Magistrates Court, the charge of aggravated assault by the Applicant against his former partner was withdrawn. However the Applicant entered into a variation of an intervention order by consent which contained 16 conditions including that he must not assault, threaten, harass or intimidate his former partner, that he not follow or keep the former partner under surveillance, that he not be within 100 metres of the former partner, that he not contact the former partner directly or indirectly in any way, that he must not enter or remain within 100 metres of the boundary of the former partners residence or place of employment, but that contact is permitted for the purpose of court proceedings.
[26] Exhibit 2, ST2 p 71.
Domestic violence disputes may often result in intervention orders being made, without criminal charges proceeding, but nonetheless on the evidence before the Tribunal there were still issues of serious conflict between the Applicant and his former partner. The Applicant said in relation to the issues involving his former partner that she blames him for everything. He is frustrated because it is something he can’t understand and can’t get away from, but he said that he wanted his son to be part of his life. He said if he does good things for his son that may assist in solving his current problems. He did say that perhaps he did not understand his partner at the relevant time.
REFEREE EVIDENCE
The Tribunal received evidence by telephone from Mr Deng Manyuon, a Senior multicultural community services officer with Australian Migrant Resource Centre. Mr Manyuon confirmed the contents of his letter dated 27 February 2018 that was before the Tribunal.[27] He confirmed that the Applicant arrived in Australia in 2001 having suffered mental health issues following a civil war and life in a refugee camp in Kenya. There was no medical evidence before the Tribunal to corroborate any mental health issue.
[27] Exhibit 3.
Mr Manyuon also described the Applicant’s difficult home life once in Australia, and he was aware of the Applicant’s offender history but not those issues relating to his partner and allegations of domestic violence. He had not met the Applicant’s son or his former partner.
Up until 2015 Mr Manyuon saw the Applicant fortnightly. During that time the Applicant associated with a young man who contributed to getting him into trouble and consuming alcohol. However since 2015, Mr Manyuon said the Applicant had become more responsible and has grown up. The Applicant had changed and has now become involved with others, mentoring young people and helping to provide work and support for those in the African community.
Mr Manyuon said the Applicant volunteers to help young Sudanese and other Africans, and organised a major African youth event in November 2015 which Multicultural SA funded and was supervised by the African Community Council of SA Incorporated.
FAILURE TO DISCLOSE CONVICTIONS
When cross-examined about his application for citizenship lodged on 12 September 2015 and his failure to disclose his criminal history, the Applicant’s evidence became evasive and inconsistent.
Initially he said he could not recall at the time he wrote the application the fact of his previous convictions, and that he only remembered them when he received his disclosable history record from police. The Applicant’s attention was drawn to his response to the “Invitation to comment on adverse information – application for Australian Citizenship” dated 21 December 2016, and there he stated the reason he did not disclose the balance of his prior convictions was “for the fact that they happened years back”.
To this the Applicant admitted he thought he would have had a better chance of being granted the application by not including his entire offending, and admitted he deliberately withheld information. He believed it was a “step by step” process and did not read the instructions properly; however he also accepted that he understood the contents of the declaration and he had not been honest with the Department. This deception is to the Applicant’s discredit.
SUBMISSIONS
In closing address the Applicant confirmed his strong desire to be an Australian citizen, and that he had not been in trouble with police since the last offending in 2015. He wanted to provide for his son and enjoy the responsibility of being a dedicated father.
The Applicant has been working full time and contributing to the cultural lives of those who are migrants and particularly within the African community. That has been occurring since in or about late 2015. He wants to continue mentoring young people and become a positive role model for his son.
In closing the Respondent submitted that by his prior convictions and minor offences the Applicant has demonstrated a lack of respect for the law. It was submitted that by the Applicant’s general conduct, it cannot be said that he may not offend in the future.
The Respondent noted the relevant offending often occurred late at night, sometimes in Hindley Street in the company of others. Yet the Applicant explained the reason for his offending as being the fault of others, the police, the owner of the nightclub involved in the 2015 offending and his lack of appropriate legal representation. He continued at the hearing before the Tribunal to dispute events alleged by police and demonstrated an inability to take responsibility for his actions. The Respondent said little had changed since 2014. He has undertaken no formal rehabilitation and his failure to declare all of the relevant offences because they “happened years back” was not acceptable.
The Respondent submitted that insufficient time had passed since the most recent offence such that the Tribunal could be satisfied of the enduring moral qualities of the Applicant.
The Respondent further submitted that albeit Mr Manyuon suggested the Applicant was now contributing to organising major youth events and mentoring members of the community, insufficient time has passed since his offending to satisfy the Tribunal that he is of good character.
The Respondent did not address the Tribunal on the domestic violence history.
CONSIDERATION
The Applicant is a young man who came to Australia aged 11 years having faced adversity in his country of birth.
He was separated from his parents and then after he came to Australia he lost the support of his brother after he completed his secondary schooling. From that time he has been required to fend for himself.
The Applicant has been employed in full time and casual roles interstate and in South Australia since his successful graduation from year 12. He enrolled in a course at the University of Hobart, which goes to his credit and good character. He intended to further educate himself however due to financial pressures was forced to work instead. The Applicant’s evidence on these topics was delivered in a clear and concise manner without hesitation.
The Applicant was drawn into offending, in part by his association with youth groups, resulting in various offending including disorderly behaviour and resist arrest. Those offences included occasions when he was affected by alcohol and in the company of others.
The Applicant’s offending was most serious in 2015, and involved the use of a machete. Once again the Applicant failed to take responsibility for his actions; blaming other people involved in the fight and the owner of the club.
I note the learned Magistrate who received the plea of guilty and heard the submissions on the penalty said the factual basis for the plea was “on a basis that I regard with high degree of suspicion”. That plea seemed at odds with the CCTV footage. However the Magistrate accepted the plea on the factual basis before him and I do not here go behind those submitted facts.
Nonetheless the introduction of the machete into a conflict, to the extent admitted by the Applicant, was irresponsible and reprehensible and could have resulted in a far more serious and life threatening outcome for those involved. It showed an extraordinary lack of judgement.
I do note the Applicant has convictions for four offences, but has had no period of imprisonment or good behaviour bonds imposed. The Applicant has appeared in the magistrates court on a number of other occasions for misconduct, most of which proceeded without conviction. It is relevant to weigh the seriousness of the offending,[28] and although the Applicant’s criminal record may not carry any significant penalties, I find his recidivist misdemeanours, deception and lack of contrition to be of great concern.
[28] ReKakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132 at [14].
The Applicant acknowledged that he needed to change and in respect of his dealings with police he says he no longer takes a confrontational approach and walks away from conflict. That should be to his credit and demonstrates the Applicant has some appreciation for the potential reason for his conflict with police. However for the reasons I will now address, little weight can be given to this fact.
In respect of his offending the Applicant demonstrated little remorse, and blamed the police for the trouble he was in. This attitude strongly suggests the Applicant still has no adequate appreciation for why he was so often in conflict with police, and does not appreciate right from wrong when dealing with those in authority. Accusing police of lying in respect of some of the contents of the apprehension report further demonstrates a lack of contrition and taking responsibility for his conduct. The Applicant also blamed his legal representatives for their failure to properly represent him and advising him to plead guilty when he said he was not; or not to the extent of the charged offences. He also said that the Court heard the police prosecutor and the police version of events but not his.
Given the extent of the Applicant’s offending, the absence of any adequate expression of remorse and the blaming of others rather than taking responsibility for his own actions to an appropriate degree, suggests the Applicant does not demonstrate the characteristics of a person who should be extended the privilege of being granted Australian citizenship.
The Applicant has a history of difficulty in his relationship with his former partner but in evidence he has, to his credit, acknowledged that he did not have proper regard for his former partner’s issues. I do not make any factual finding about the circumstances of the conflict. On the evidence before me the Applicant was not convicted of domestic violence offending, albeit on the contents of the various police incident reports that may be surprising. Nonetheless I note the intervention order was issued and varied on 9 November 2017 by consent. I conclude there was sufficient concern about ongoing conflict between the Applicant and his former partner that the learned Magistrate determined to impose the intervention order.[29]
[29] Exhibit 2, ST1 p 1.
I do consider the evidence of Mr Manyuon weighs in the Applicant’s favour. He was aware of the Applicant’s convictions and reiterated the belief the Applicant had turned his life around. However I do note the inherent bias as advised by the Policy. The Policy relevantly provides at page 115:
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. Decision makers should give very little weight to references which do not acknowledge the offence or incident. However, decision makers should note the inherent bias in any reference which is submitted by an applicant in support of their citizenship application.
However consistent with the Respondent’s submission, I find that insufficient time has passed since the last offending such that the Tribunal can be satisfied that the Applicant meets the test of good character as required by s 21(2)(h) of the Act.
The Applicant’s failure to demonstrate any or adequate responsibility for his misdemeanours indicates that the Tribunal cannot be satisfied that he possesses the enduring moral qualities of a person to whom a grant of citizenship should be made. To the extent that the Applicant should be given some credit for his level of awareness about his past, this is far outweighed by the Applicant’s recidivist misdemeanours.
I also find his deception, with respect to the completion of the application for Australian Citizenship form, by failing to reference all relevant criminal offending was deliberate. It further demonstrates that he does not behave as would a person of good character, and in accordance with Australian community standards.
CONCLUSION
Since 2015, the Applicant has demonstrated some good qualities possessed by a person of good character, in particular, his contribution to African migrants and the organising of a major African youth event. This weighs in favour of the Applicant. However his lack of remorse for his prior offending, the blame he attributes to police, legal representatives and the courts for his poor antecedent history, his continued personal conflict in his relationship with his former partner, his deception in failing to reference all relevant criminal offending, and the passage of time since his last and most serious offence, are of such significance that the Tribunal does not accept that the Applicant meets the criteria in s 21(2)(h) of the Act.
This decision does not deprive the Applicant of his ability to apply for citizenship again. While the Applicant does not satisfy the eligibility criteria for Australian citizenship at this time, perhaps after a longer period of good behaviour and positive contribution to the Australian community the Applicant may be successful in a future Australian Citizenship application. In Re Fenn and Minister for Immigration and Ethnic Affairs [2000] AATA 931, Deputy President Breen stated at [8]:
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 year’s time when he can demonstrate a longer period of positive contribution to the Australian community.
DECISION
The decision under review is affirmed.
I certify that the preceding 100 (one hundred) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth
..............................[Sgd].....................................
Associate
Dated: 21 September 2018
Date of hearing: 3 July 2018 Applicant: In person Advocate for the Respondent: Laura Butler Solicitors for the Respondent: Australian Government Solicitor
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