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

[2020] AATA 2874

Dulalia and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2874 (13 August 2020)

Division:GENERAL DIVISION

File Number(s):      2019/6029

Re:Jeremias Dulalia

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date:13 August 2020

Place:Sydney

The decision under review is affirmed.

.........................[sgd]...............................................

Mr S Evans, Member

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral – rejection of citizenship application – good character requirement not satisfied – criminal history – domestic violence – apprehended violence order – traffic offences – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21, 24

CASES

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

Irving v Minister for Immigration, Local Government & Ethic Affairs (1996) 68 FCR 422

SECONDARY MATERIALS

Department of Immigration and Border Protection, Australian Citizenship Policy (1 June 2016)

REASONS FOR DECISION

Mr S Evans, Member

13 August 2020

1. The Applicant, Jeremias Del Mundo Dulalia seeks review of a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister” or “the Respondent”) to refuse his application for Australian citizenship on the basis that he did not meet the good character requirement.

   INTRODUCTION

2. Mr Dulalia is a 43 year old citizen of the Philippines who first arrived in Australia on 20 January 2002 and currently holds a Subclass BB-155 Resident Return visa.  Mr Dulalia applied for Australian citizenship by conferral on 31 May 2017.  On 20 August 2019 Mr Dulalia’s application was rejected by a delegate of the Minister.

3. Mr Dulalia has appealed to this Tribunal for review of the delegate’s decision.  In his application for review he writes that he considers that the decision to reject his application was unfair.

   Hearing

4. The matter was heard on 29 June 2020 and Mr Dulalia, his representative and representative for the Minister appeared via video conference in accordance with the COVID-19 Special Measures Practice Direction given under section 18B of the Administrative Appeals Tribunal Act 1975 (Cth). Mr Dulalia was represented by his partner and provided evidence to the Tribunal under affirmation.

5. For the reasons which follow, I am satisfied that Mr Dulalia does not meet the character requirements for Australian citizenship by conferral and the decision to refuse his application will be affirmed.

   ISSUES FOR THE TRIBUNAL

6. The sole issue for determination in whether, at the time of the Tribunal’s decision, Mr Dulalia is of good character within the meaning of the Australian Citizenship Act 2007 (Cth) (“the Act”).

   EVIDENCE AND FACTS

   Background

7. Mr Dulalia grew up in the Philippines with his brother and two sisters.  His parents were separated and his father left the family when he was young.  Mr Dulalia currently resides with his partner and their child in Australia.

   Mr Dulalia’s offending

8. A national criminal history check details Mr Dulalia’s criminal convictions since arriving in Australia.  In June 2011 he was convicted of stalk/intimidate intend fear of physical/mental harm and sentenced to a 12 month good behaviour bond.

9. In March 2012 Mr Dulalia received a 12 month good behaviour bond at Windsor Local Court for common assault and contravening an apprehended violence order (“AVO”).  He was directed by the court to engage in alcohol and drug counselling and counselling relating to domestic violence.  He was also convicted of one count of stalk/intimidate intend fear of physical/mental harm for which he received a further 12 month good behaviour bond.

10. Mr Dulalia has been the subject of AVOs on 13 March 2011, 23 March 2011, 6 June 2011, 23 March 2012, 7 October 2012 and 12 October 2012.

11. In August 2012 he was fined for furnishing false information/statement to licensee.

12. He also has a number of driving offences which include driving whilst unlicensed and using an uninsured vehicle.  On 17 November 2015 Mr Dulalia was convicted for using an unregistered motor vehicle on the road, driving while license suspended, using an uninsured vehicle and using a vehicle with motor vehicle tax not paid.

13. Also before the Tribunal are the summonsed records of the NSW Police (the “police records”) which provide additional details as to the circumstances surrounding his offending.  Mr Dulalia was provided an opportunity to comment on the content of the police records prior to the hearing.  During the hearing he was also asked questions and provided opportunity to comment on  information in the police records which has been considered by the Tribunal. 

14. Asked about an incident on 13 March 2011 in which it was recorded Mr Dulalia was “armed with a 30cm stainless steel serrated bread knife” whilst arguing with his then partner Ms B whilst children were in the house, Mr Dulalia told the Tribunal that it was a matter of self-defence.  He said that a person was going to attack him and that he did not agree with the police account.

15. He was taken to the details of an incident that took place on 3 December 2011. The police records state that Mr Dulalia was subject to an AVO at the time and returned home and was “causing problems” as he wanted to get some clothing.  Mr Dulalia conceded he did go to the house of his ex-partner as recorded but he could not recall the exact details of what was said.

16. Mr Dulalia told the Tribunal that he was involved in a motor vehicle accident in November 2011 when a vehicle hit him from behind. He sustained injuries to his upper body, a head injury, a broken finger and required a knee reconstruction.  He says that the accident left him traumatised.  He lost his job, became homeless for a period and subsequently returned to what he calls a “toxic and negative relationship” with Ms B.  Mr Dulalia told the Tribunal that he met Ms B in 2010 and she became his partner and that she was a bad influence on him.

17. In relation to the offending for which he was convicted in June 2011 Mr Dulalia submits:

    … when the offences were recorded, I was still quite new to the country and spoke very limited English, and was not aware of my rights…

    …

    I never said or did anything physical to my then partner.  This is her perception and the police methods of putting charges on one incident based on what she told them, for which I received a 12 months bond. 

18. In relation to the March 2012 convictions he writes that the offence occurred in October the year before and was related to the incident which occurred in early 2011.[1]  He says he had found “further evidence” of Ms B’s infidelity and that Ms B was trying to destroy his mobile phone.  He writes in part:

    The mistake I made was that I had grabbed my phone back.  Nobody got hurt and there is no medical evidence whatsoever. 

    [1] T7, 55.

    Incoming passenger cards

19. Mr Dulalia failed to declare his offences on an incoming passenger card on 17 May 2018.  Mr Dulalia says that he has trauma and a concussive brain injury as a consequence of the car accident and that he did not intend to provide misleading information.

    Rehabilitation

20. Following the 2012 conviction for stalk/intimidate intend fear of physical/mental harm, Mr Dulalia was directed to participate in drug addiction counselling.  He told the Tribunal at the hearing that he attended up to three sessions before he was told he did not need to go back again.  In a written statement he explained why he did not complete the course:

    I attended the Probation Service who, after assessment, said I did not need to do anything else and I had no alcohol or drug counselling because they deemed I did not require any drug or alcohol counselling or any domestic violence program because the Probation Officer did not deem it necessary.

21. Mr Dulalia confirmed that he had not participated in a traffic offenders course.

    Character references

22. Mr Dulalia has provided character references in support of his application.

23. His partner, Ms Salubre, provides a detailed background of Mr Dulalia and their relationship together.  She writes that Mr Dulalia had a difficult childhood and “grew without love”.  She writes that she is working with him to help him manage some of the consequences of his past offending, such the fines he received for his driving offences.  She submits that Mr Dulalia has changed and notes that he pays child support for his two other children from a previous relationship.

24. In a statutory declaration Mr Fu writes that he has known Mr Dulalia for five years and is aware of the circumstances of his convictions.  He writes that Mr Dulalia has improved his English language skills and is settled now with his young son.

25. Ms Frugtniet writes that she met Mr Dualia in 2016 and is aware of his criminal convictions.  She submits that Mr Dulalia received poor legal advice and subsequently pleaded guilty.  She notes he works and pays taxes.

26. Mr Frugtniet writes in a statutory declaration that he has seen Mr Dulalia’s National Police Check certificate and in relation to the charges believes that “it was because he did not know the language and had no professional help at that time”. Mr Frugtniet writes that Mr Dulalia is an honest and kind man with whom he would trust with his money and possessions.

27. Mr Burgos writes in a statutory declaration that he has known Mr Dulalia for over 11 years having met him through the “fiesta celebrations” of the Filipino community.  He provides a detailed knowledge of Mr Dulalia’s offending history and notes his employment as a jeweller.

    Community service

28. Mr Dulalia has been back to the Philippines where he assisted in the building of schools.  He says that he has also visited nursing homes in Australia.

    LEGISLATIVE AND POLICY FRAMEWORK 

29. Under section 21(2)(h) of the Act a person is eligible to become an Australian citizen if, among other things, the Minister is satisfied that the applicant:

    “is of good character at the time of the Minister’s decision on the application”

    Determining questions of character

30. Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Section 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.

31. The term "good character" is not defined or qualified by the Act.  Its meaning was considered by the Full Court in Irving v Minister for Immigration, Local Government & Ethic Affairs[2] (“Irving”) in the context of the power of the Minister to refuse to issue a visa. Justice Davies said:

    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: see The Oxford English Dictionary, meanings 11, 12 and 13; The Macquarie Dictionary meanings 1, 2, 3, 4 and 5. Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends 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. But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.[3]

    To similar effect, 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 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.[4]

    [2] (1996) 68 FCR 422; [1996] FCA 663.

    [3] (1996) 68 FCR 422, 425.

    [4] (1996) 68 FCR 422, 431-432.

32. The Department’s official guide to decision makers, the Citizenship Policy (“the Policy”),[5] provides guidance for decision makers including the Tribunal in determining whether Mr Dulalia is of good character.

    [5] Department of Immigration and Border Protection, Citizenship Policy (1 June 2016). This department is now the Department of Home Affairs.

33. Informed by the discussion in Irving, the Policy suggests 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.

34. The Policy specifically call for the decision maker to look holistically at an applicant's behaviour over a lasting or enduring period of time. Relevantly, the Policy calls upon decision makers to consider if the applicant has committed an offence, and whether that offence was a serious or minor offence.[6]

    [6] Ibid.

35. The Policy also notes that minor offences may include offences that lead to a finding of guilt, but no conviction or sentence.  In each Australian jurisdiction there are sentencing arrangements for summary offences where there is discretion not to record conviction.

36. The Tribunal was guided by these considerations in determining if Mr Dulalia meets the good character requirement for Australian citizenship.

    CONSIDERATION

37. The Respondent argues that Mr Dulalia has committed 11 offences over a period of 4 years,  amounting to a significant criminal history which includes serious offences such as domestic violence offences.  This is particularly the case where the Policy states that an applicant of good character would not cause harm to others through their conduct.

38. Mr Dulalia submits that the 2011 car accident left him traumatised and distressed and contributed to his offending.  It is certainly the case that his most serious offending – particularly those relating to domestic violence and receiving stolen goods – occurred in the period between the November 2011 accident and October 2012.  However, Mr Dulalia was issued an AVO prior to the accident, which along with his continued traffic offences, undermines his suggestion of a causal link between the accident and his offending.  I note also there is no medical evidence before the Tribunal which supports this assertion. 

39. Mr Dulalia’s criminal history includes domestic violence offences which are fundamentally inconsistent with the standard of behaviour expected by the Australian community and weighs against him being of good character.  Mr Dulalia was provided an opportunity to comment on these offences at the hearing and he claimed to be in a “toxic relationship” at the time.  It is particularly serious that Mr Dulalia saw fit to breach multiple AVOs which resulted in a conviction for this offence on 23 March 2012.

40. Whilst domestic violence is particularly serious, it is even more so given some of the specifics of the offending.  One incident involved use of a weapon whilst minors were present.  In considering Mr Dulalia’s application, I am also mindful of the number of offences and the extended period over which he continued to offend.  The repetitive nature of Mr Dulalia’s offending indicates a pattern of behaviour which is inconsistent with the requirements set out in the Policy.

41. The character test requires the Tribunal to consider the enduring moral qualities of an applicant.  Mr Dulalia’s convictions give rise to a presumption that he is not of good character.  In considering the evidence to the contrary I note that nearly eight years has passed since his last offence which was not related to driving.

42. Mr Dulalia’s driving record, even in isolation of his other offending, weighs heavily against his application.  As recently as December 2018 he was issued an infringement notice for driving an unregistered vehicle.  Some of his driving offences, such as driving whilst his license was suspended, are serious and indicative of a lack of respect for the law.

43. Mr Dulalia appears to have found a solid footing with his current relationship with Ms Salubre.  She is clearly intent on helping Mr Dulalia to become an Australian citizen and a role model to their child.

44. It would appear that Mr Dulalia has managed to live harmoniously with his partner and child and has avoided further domestic violence and related offending which became frequent in the year following his accident.  I note an incident was reported between Mr Dulalia and Ms Salubre in October 2017 but I accept the explanation provided and it does not weigh against him in my consideration of his application.

45. The Respondent argues that Mr Dulalia has only been in Australia for 13 years and has spent a significant amount of his time either committing offences or being subject to good behaviour bonds as a result of his offending.

46. I consider the time which has passed since his most recent offending is not sufficient to demonstrate Mr Dulalia is of good character relative to the extended period over which his offences occurred.

47. It is also of concern that in addressing his criminal record a consistent theme of deflecting responsibility emerged.  Mr Dulalia variously claimed he was the victim of poor legal advice, or that his poor English language skills or his accident were factors.  More seriously, he appears to blame his former partner who was the victim of his domestic violence for some of his offending.

48. This was reinforced by some of his references which also apportion blame for Mr Dulalia’s offending to his ex-partner and the poor legal advice he received.  I accept these references in so much as they attest to Mr Dulalia having made progress and better choices which are enabling him to make a positive contribution to the community through working and providing for his partner and child.

49. DP Breen in Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 states:

    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 [the applicant] 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.

50. This is particularly relevant to Mr Dulalia’s application. Whilst his record does not currently lend itself to a finding that he meets the good character requirements, there are many indicators that he is on the way to doing so. There is nothing to prevent him from applying for citizenship again when he is able to demonstrate a longer period of positive contribution to the Australian community.

51. For these reasons, I find that Mr Dulalia does not satisfy the good character requirement under section 21(2)(h) of the Act.

    DECISION

1. For the reasons stated above, the decision under review is affirmed.

I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

..................................[sgd]......................................

Associate

Dated: 13 August 2020

Date(s) of hearing:	29 June 2020
Advocate for the Applicant:	Ms M Salubre
Solicitors for the Respondent:	Ms K Gawidziel, Australian Government Solicitor