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

[2021] AATA 2880

Emenogu and          Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2880 (16 August 2021)

Division:GENERAL DIVISION

File Number(s):      2020/6533

Re:Emenogu

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:16 August 2021

Place:Sydney

The correct or preferable decision is to affirm the decision under review, that being the decision of the delegate of the Respondent dated 5 October 2020, which refused the Applicant’s application for Australian citizenship.

..............................[SGD]..........................................

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

CITIZENSHIP – Application for Australian citizenship by conferral – Good character requirement – Whether the Applicant is of good character under section 21(2)(h) of the Australian Citizenship Act 2007 (Cth) – Where the Applicant had been convicted of criminal offences – Where the Applicant failed to disclose criminal convictions on his citizenship application – Good character requirement not satisfied – Decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth), s 21

CASES

Hamood and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1847

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Kuol and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1923

SECONDARY MATERIALS

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

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

16 August 2021

BACKGROUND

1. This is an application for review of a decision of a delegate of the Respondent dated 5 October 2020. The delegate decided to refuse an application for Australian citizenship made by the Applicant, on the basis that the delegate was not satisfied that the Applicant was of good character for the purpose of paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act).

2. The Applicant is a 36-year-old citizen of Nigeria who first arrived in Australia on 7 March 2006 on a Special Purpose (subclass 943) visa which expired on 26 April 2006. The Applicant remained unlawfully in Australia until 19 December 2006, when he was granted the first of a series of Bridging visas. He then unsuccessfully sought a Distinguished Talent visa and a Medical Treatment visa, before departing Australia on 18 January 2008.

3. On 22 January 2008, the Applicant lodged an application for a Partner (Provisional) (subclass 309) visa which was granted on 29 April 2008. He returned to Australia on 26 May 2008 and was granted a Partner (Migrant) (subclass 100) visa on 5 May 2010.

4. On 5 April 2012, the Applicant made an application for Australian citizenship by conferral which was refused as he did not satisfy one of the residence requirements.

5. On 27 August 2015 and 11 November 2016, the Applicant was granted Resident Return (subclass 155) visas.

6. On 20 September 2017, the Applicant made another application for Australian citizenship by conferral which was again refused as he did not satisfy one of the residence requirements.

7. On 7 August 2018, the Applicant made a further application for Australian citizenship by conferral. On that application, the Applicant declared that he had not been convicted of, or found guilty of, any criminal offences.

8. A Check Results Report obtained by the Department indicated that the Applicant had the following criminal history:

Court	Date	Offence	Result
Parramatta District Court	22.06.2018	Common assault-T2	Order varied: Community service order: 50 hours
Parramatta District Court	22.06.2018	Intentionally distribute intimate image w/o consent etc-T2	Order varied: Community service order: 50 hours
Burwood Local Court	14.05.2018	Common assault-T2	Imprisonment (aggregate): 7 months
Burwood Local Court	14.05.2018	Intentionally distribute intimate image w/o consent etc-T2	Imprisonment (aggregate): 7 months
Liverpool Local Court	14.07.2011	Drive on road etc while licence suspended	Fine: $400 Disqualification: 12 months

1. On 11 August 2020, the Department wrote to the Applicant inviting him to comment on, or provide an explanation about, the adverse information contained in the Check Results Report.

2. On 13 August 2020, the Applicant provided a completed form 80 signed on 8 August 2020. On this form, the Applicant corrected some information including in relation to his Nigerian citizenship, the number of children he had, that he had debts to the Commonwealth, that he had been convicted of offences and that he had overstayed his visa.

3. On 27 August 2020, the Applicant provided a number of additional documents and character references.

4. On 5 October 2020, a delegate for the Minister refused the application on the basis that the Applicant did not meet the good character requirement at paragraph 21(2)(h) of the Act.

5. The Applicant sought review of the delegate's decision before the Tribunal by application dated 19 October 2020.

   LEGAL FRAMEWORK

6. Section 21(2) of the Act provides 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. (emphasis added)

   THE ISSUES

7. The general eligibility criteria for conferral of Australian citizenship is set out in subsection 21(2) of the Act. The delegate determined that the Applicant satisfied the requirements at paragraphs 21(2)(a)-(g). However, the delegate was not satisfied that the Applicant satisfied paragraph 21(2)(h), which requires that the person is eligible to become an Australian citizen if the Minister is satisfied that the person 'is of good character at the time of the Minister's decision on the application'.

8. Therefore, the issue before the Tribunal is whether the Applicant 'is of good character at the time of the Minister's decision on the application'.

   THE EVIDENCE

   The Applicant

9. The Applicant started by expressing remorse as to what had occurred some four years ago and led to his criminal convictions.

10. He said that he had not intended to provide false information at the time he completed his citizenship application, by failing to disclose his convictions. Rather he said that the problem was caused by his English language skills being poor, however he conceded he had completed high school in English. The Applicant also said that he was experiencing some difficulties at that time including the loss of his father.

11. The Applicant was taken to the police report of the incident of 13 August 2017, involving an altercation with a referee at a football match, and also to the statements of witnesses which did not agree with his version of events. He said that he had responded to a racial slur on the part of the referee by pushing the referee to the ground. When questioned about the other versions of events which referred to the Applicant punching the referee in the face, the Applicant said those versions were not correct.

12. The Applicant was also questioned about a further incident in relation to which he was also charged which involved sending an image of a woman with whom he was having a relationship to another person via his mobile telephone. The Applicant said that he had been in a sexual relationship with the woman who had regularly sent such images to him. He had wanted to end the relationship, but the other party did not and continued to send the images. He said he sent the image to her sister in an endeavour to stop her sending similar images to him. He had not sent the image to any other person.

13. The Applicant said he had done his 50 hours of community service in respect of his offences and that for some years he had been trying to assist troubled young people in his community. He is currently in a stable and loving relationship with his current partner. He also has care of his children.

14. The Applicant expressed serious remorse for the “mistakes” he had made and pointed to the fact that both offences were a “one off.”

    Ms Candice Rhind

15. Ms Rhind is the Applicant’s current partner. At the hearing, she affirmed the contents of her statement dated 14 August 2020.

16. When questioned by the Counsel for the Respondent, Ms Rhind said that the two incidents that occurred in 2018 were “out-of-character” for the Applicant.

17. Ms Rhind gave evidence regarding an incident that occurred at a nightclub in 2016 where a Polynesian male made advances to her in the presence of the Applicant. Ms Rhind said that she had expected the Applicant to escalate the situation, however he was able to effectively diffuse the situation and prevent a physical altercation from occurring.

18. Ms Rhind also gave evidence that the Applicant is a committed and loving father to his children, is respected in his community and is of good moral character.

    Statements of Support

19. In carefully considering the totality of the evidence before the Tribunal, I have also had regard to a number of written statements filed in support of the Applicant’s good character, including:

    (a)the Statement of Pastor Emmanuel Kwaku Adjei dated 22 August 2020;

    (b)the Statement of Danny Shane Green dated 10 January 2021;

    (c)the Statement of Sekou Jabateh dated 13 January 2021;

    (d)the Statement of Joy Anne Rhind dated 2 January 2021; and

    (e)the Statement of Candice Louise Rhind dated 14 August 2020.

    DISCUSSION

20. It was put very clearly to the Applicant by Counsel for the Respondent that the Department considered that the Applicant had not been truthful in his responses to the Department and that although he may be genuinely remorseful and not have re-offended, more time was needed in order to demonstrate that the Applicant was able to meet the good character requirement set out in the Act.

21. The Act does not set out the definition of good character, however the matter was considered by the Federal Court in the matter of Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422. In that case, the Full Court said 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 whilst the latter is a review of subjective public opinion. A person who had 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.

22. Further guidance in relation to the concept of good character can be found in the Citizenship Procedural Instructions (CPI), in particular, CPI 15 – Assessing Good Character under the Citizenship Act. The most recent version of CPI 15 (as at 26 February 2021) states as follows:

    (a)an applicant of good character would, among other things:

    (i)respect and abide by the law in the Australia and other countries;

    (ii)be truthful and not practise deception or fraud in their dealing with the Australian Government, including by not providing false information or other material deception during visa and citizenship applications; and

    (iii)not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without a licence or insurance) (paragraph 4 of CPI 15);

    (b)it is relevant to consider whether the applicant has been honest in dealings with the Minister’s Department, and decision-makers should consider all of the applicant’s interactions with the Department, including visa and citizenship applications. If the applicant has knowingly presented incorrect information or a bogus document, this may reflect on the person’s character (paragraph 11.1 of CPI 15); and

    (c)consideration should be given to whether the applicant has committed any criminal offences and, if so, the seriousness of those offences. The CPIs note that while minor offences may include some traffic offences included in a criminal record, and that these may usually have little weight in a character assessment, a history of such fines may demonstrate a disregard for the law that may be relevant to the assessment of character (paragraph 12.1 of CPI 15).

23. In the current case, the Applicant has been convicted of two criminal offences. One for common assault and another for sending an illicit image without consent. He failed to disclose these offences in his citizenship application.

24. At the hearing, I pointed out to the Applicant that the Tribunal must accept the convictions for assault and distributing the image. The Tribunal cannot question those convictions, even though the Applicant may now be presenting a different version of events. Both offences must be taken seriously, particularly in my opinion, the common assault conviction. I accept that the Applicant only sent the image to the victim’s sister and that it was to try and dissuade the victim from sending further such images.

25. It is difficult to accept that the Applicant was not fully aware of these offences when he filled in his citizenship application three weeks later. He had initially been found guilty at the Burwood Local Court and sentenced to 12 months imprisonment, which was reduced on appeal to the District Court on 22 June 2018. This must have been a very significant event. If the appeal had not been successful, the Applicant would have been sent to jail. It is highly unlikely that such an event would be easily forgotten.

26. It is also of concern that the Applicant, although accepting his convictions and expressing remorse, continued to assert that the police fact sheets were incorrect and that there were significant inconsistencies in the evidence.

27. I accept that the Applicant has not been convicted of any further offences since the incidents leading to his conviction and that he is generally a hard-working member of the community who is committed to his partner and children.

28. There are relevant decisions in this Tribunal to which I have had regard. In Hamood and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1847 the Applicant had been convicted of various driving offences and had not disclosed them on his citizenship application. The Tribunal accepted that he did not intend to deceive the Department when he completed that application, but that by not providing full and accurate information he had demonstrated a level of indifference to his responsibility. The Tribunal held that this was dissonant to the expectation of someone seeking the privilege of citizenship, which ultimately weighed against a finding of good character.

29. In Kuol and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1923 the Applicant had demonstrated quite serious offending which had occurred a longer time ago than the offending in this matter. The Tribunal accepted that the Applicant showed acknowledgement and remorse for his offending and that he was on a good path, but was not convinced that he had accepted full responsibility for his past actions, or that enough time had passed since the offending to reach the threshold of good character.

30. Both cases referred to above are analogous to the current circumstances. When considered along with Federal Court authority, it leads to a conclusion, which I think is the proper conclusion, that further time needs to elapse in order for the Applicant to demonstrate that he meets the good character requirement for citizenship. Acquiring citizenship is not to be taken lightly. It is a very significant conferral of rights and must be treated with the gravity that such an important issue requires.

31. I am of the opinion that the Applicant has the capacity to make a worthwhile contribution to the Australian community and that he is making a serious attempt to do so. However, I am of the opinion that a further period of time is required, during which the Applicant should continue to demonstrate a positive role in the community and not reoffend. The Applicant must also ensure that he deals openly and honestly with the Australian government.

32. The Applicant has learnt a valuable lesson from the current proceedings. He is free to reapply for citizenship at a later time, and in the absence of any further convictions and demonstrated integrity in the way in which he deals with the Australian Government, he is likely to be successful.

    DECISION

33. The correct or preferable decision is to affirm the decision under review, that being the decision of the delegate of the Respondent dated 5 October 2020, which refused the Applicant’s application for Australian citizenship.

I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

............................[SGD]............................................

Associate

Dated: 16 August 2021

Date(s) of hearing:	14 July 2021
Date final submissions received:	14 July 2021
Applicant:	In person (by Microsoft Teams)
Solicitors for the Respondent:	J Strugnell, Minter Ellison