Ferguson and Minister for Immigration and Border Protection (Citizenship)

[2016] AATA 678

Ferguson and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 678 (2 September 2016)

Division	GENERAL DIVISION
File Number(s)	2015/4448
Re	Laura Ferguson
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Ms N Isenberg, Senior Member
Date	2 September 2016
Place	Sydney

The decision under review is set aside and the application is remitted to the Respondent for reconsideration with a direction that Laura Ferguson is of good character for the purposes of s 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

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

Ms N Isenberg, Senior Member

CATCHWORDS

CITIZENSHIP – eligibility – whether applicant is of good character – decision under review set aside and remitted.

LEGISLATION

Australian Citizenship Act 2007 (Cth)ss 21, 24

CASES

Apire and Minister for Immigration and Border Protection [2014] AATA 193

Daood and Minister for Immigration and Border Protection [2015] AATA 481
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Shi v Migration Agents Registration Authority (2008) 235 CLR 286

Wang and Minister for Immigration and Border Protection [2014] AATA 89

SECONDARY MATERIALS

Department of Immigration and Border Protection (Cth), Australian Citizenship Instructions, 1 January 2016.

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

REASONS FOR DECISION

Ms N Isenberg, Senior Member

2 September 2016

BACKGROUND TO THE APPLICATION

1. On 30 March 2015 the applicant, Laura Ferguson, an Irish citizen, lodged an application for conferral of Australian citizenship.  On 28 July 2015, a delegate of the Respondent refused the application on the basis that the applicant was not considered to be of good character as required by s 24(1) of the Australian Citizenship Act 2007 (Cth) (the Act) because of her criminal history.  The applicant seeks review of the decision.

   ISSUE

2. The issue before the Tribunal is whether the applicant is of good character for the purpose of being approved to become an Australian citizen.

   RELEVANT LEGISLATION AND POLICY

3. 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 the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

4. Section 24(1A) of the Act provides that the Minister must not approve a person becoming an Australian citizen unless the person is eligible to become an Australian citizen under, relevantly s 21(2) of the Act.  That section sets out the general eligibility criteria for a person over 18 years of age to become an Australian citizen.  Among the criteria at s 21(2), paragraph (h) provides that the Minister must be satisfied that the person is of good character at the time of the Minister’s decision on the application.

   Good character requirement

5. The term “good character” is not defined in the Act.  There is however guidance on the application of the “good character'’ requirement in the Citizenship Policy (the Policy). The Tribunal, as the decision-maker will generally apply policy such as that contained in the Policy unless there are cogent reasons not to do so: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. Further guidance is provided by the Australian Citizenship Instructions (ACIs) dated 1 January 2016 which detail operational instructions and supplement the policy guidance provided in the Policy.

6. Chapter 11 of the Policy defines the meaning of ‘good character’ for administrative purposes and provides policy guidance on how to assess ‘good character’ under s 21(2)(h) of the Act.  It is noted there that the concept of ’good character’ refers to a person’s “enduring moral qualities”, including, relevantly the “characteristics which have been demonstrated over a very long period of time’’.  A decision-maker may be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities, which are evident before their visa application and throughout their migration and citizenship process.  The Respondent agreed that it was appropriate for the Tribunal, in reaching the correct and preferable decision, to assess whether the applicant is of good character at the time of the decision on the review of this application in accordance with Shi v Migration Agents Registration Authority (2008) 235 CLR 236, that is, the Tribunal is entitled to take into account facts and circumstances at the time of review.

7. An applicant’s adherence to community values, including relevantly their obedience to and observance of the law, may be examined by reference to their behaviour.  An applicant of good character would, inter alia, respect and abide by the law in Australia and not have evaded immigration control.  Nor would an applicant cause harm to others or risk harm to others' through recklessness exhibited by negligent driving, excessive speeding or driving without a licence.

8. The Policy also provides that in weighing up a character decision, decision-makers are required to apply community standards in considering:

   (a)whether a person of good character would have behaved the way the applicant did;

   (b)what evidence is available to demonstrate that the applicant has upheld and obeyed the law;

   (c)whether the applicant has behaved in accordance with Australia’s community standards; and

   (d)whether the applicant shares Australia’s democratic beliefs and respects its rights and liberties.

9. In doing so, the decision-maker should look holistically at the applicant’s behaviour over a lasting or enduring period of time.  If a person has committed a “serious offence", it may be difficult for a decision-maker to be satisfied that they are now of good character, even after the passage of many years.

10. An applicant may provide written references in order to shed light upon their character which should, where applicable, acknowledge any offence or other incident and explain why the applicant is nonetheless of good character.  Decision makers should give little weight to references that do not acknowledge the relevant offence or incident and should also have regard to the inherent bias in any reference submitted by an applicant in support of their application for citizenship.

11. In addition to the above, ACI 10.5.2 lists a number of factors which may be considered in mitigation of a finding that an applicant may not be of good character.  The factors relevant to the present case are:

    (a)Whether the applicant has accepted responsibility and shown remorse for their conduct;

    (b)The age of the applicant at the time of the conduct;

    (c)Whether there were any extenuating circumstances relating to the conduct; and

    (d)Whether there is evidence of the applicant’s length of employment, a stable family life, and/or community involvement.

    EVIDENCE

12. Ms Ferguson, who is now aged 46, gave evidence that she had grown up in a dysfunctional family and she spent some years in institutions and in foster homes, where she experienced abuse.  After her mother, who had bipolar disorder, suicided, her father paid for her to come to Australia.  She first visited Australia in January 1990, and in February 1992 she returned to Ireland when her visa expired.  She obtained a spouse visa in October 1992, on the basis of a de facto relationship she had formed while in Australia and she returned here in March 1993.  She went to Ireland again in August 1993 to finalise her late father’s affairs and returned to Australia in November 1993, and has not left Australia since.

13. She said that the de facto relationship endured for 12 years, during which time she and her partner established successful pastoral-related businesses in different parts of rural Australia.  The relationship was a turbulent one, and her partner was a philanderer.  Domestic violence appears to have been a feature of the relationship and at the root of a number of the charges which were brought against her.  She miscarried, she said, as a result of her partner’s violence.  Unsurprisingly, in 2004, the relationship ended.  He and his family were ‘the only family she had known’ and she was badly affected when he left her.  She attempted suicide and was hospitalised for 3 months.  Because of their business relationship, litigation ensued.

14. From 2004 to 2012 she worked regular shifts for 20-30 hours a week as a barmaid in a small club.  In 2006 she formed a relationship with a man, who abandoned her when she became pregnant.  In 2007 her son was born; she worked until 6 weeks before he was born, and returned to work part time for a period, then resumed her regular shifts. 

15. She obtained qualifications as a beautician and in 2009 undertook some renovations to her home from which to run a beauty salon.  She also opened a business in a nearby small town, but beauty treatments were out of the financial range of most of the town folk.  

16. In 2011 the club where she worked was in financial difficulties and, from the applicant’s evidence, pressure was put on the applicant and the other few remaining employees to cut corners.  Ultimately she brought a workers’ compensation claim.  As a result of the workplace dispute, she claimed she was abused and ostracised in the town, especially when the club had to significantly reduce its operating hours, because it could no longer function.  The applicants’s position was complicated by having briefly had a relationship with a club official which had ended at the applicant’s instigation, acrimoniously.  She was afraid of him, and unsuccessfully sought police intervention. 

17. During 2012 and 2013 she was significantly stressed because of the ostracism and the two litigious matters in which she was involved.  She sought the assistance of a psychologist, Ms Karina Allen.  Ms Allen provided a written report and also gave evidence.  Her evidence was that the applicant had been referred to her in August 2012 because of anxiety and depression.  She had fortnightly consultations throughout 2013 and monthly through 2014.  She was aware of the applicant’s criminal history.  She largely attributed the applicant’s ‘development of unhealthy coping strategies’ and ‘unhelpful interpersonal style’ to her childhood experiences, which had also contributed to the development of mental health issues and made her more vulnerable to offending behaviour.  She wrote in her report about the various coping mechanisms to which she had introduced the applicant.  She considered the applicant had a very good insight into her offending, and had developed appropriate strategies to avoid re-offending.   

18. It was not until November 2014 that both litigious matters in which she had been involved were finalised.  In early 2015, largely because of the ongoing ostracism, she moved away from the town and moved to another country town interstate to start a new life.  She commenced a Law degree at her own expense but dropped out when, despite completing the assignments, she came to the view that it was not her forte and could not ever see herself practising.  In July 2015 she started work at the town’s nursing home as a cleaner/kitchen hand.  A reference was provided by her employer, noting her professionalism and that she is honest and compassionate.  In February 2016 she started studying Assistant Nursing (Aged Care) at TAFE and has one module remaining.  She has enrolled in, and is soon to commence, Certificate IV in Allied Health which will enable her to assist occupational therapists and physiotherapists and to work in community health.

19. The applicant did not deny the criminal history to which the Respondent had referred.  In the following matters no conviction was recorded, although the applicant was fined:    

    ·In April 1995: wilful and unlawful damage to property.  

    ·In April 1996: behaving in an indecent manner.  

    ·In March 2001: unlawful possession of weapons [a knuckle duster] while not being the holder of a licence and common assault.  

    ·In April 2005: two counts of common assault.  

20. In April 2002, the applicant was charged with behaving in a disorderly manner.  She was convicted and fined $100.  No details were available as to the particulars of the charge but the applicant’s recollection was that it arose out of a domestic dispute and after she had consumed a large amount of alcohol.

21. Between August 2007 and August 2011 she had 3 speeding offences for which she lost demerit points and was fined.  She was also pulled over for driving without a licence, which, she said, was because she had forgotten to renew it, amidst the issues associated with her workers’ compensation claim.

22. On 25 May 2012, the applicant was charged with high range drink driving.  The hearing for this matter did not take place until July 2014.  Following the hearing, the applicant’s licence was suspended from July 2014 to September 2014 – the period of automatic suspension.  Documents produced from the relevant Magistrates’ Court recorded as to the facts of the charge that Police were called to attend a disturbance.  When they arrived they located a car in the middle of the road with the driver’s door open and a crowd of people standing around the applicant who was being verbally abusive, struggling to stand, wearing nothing but a long sleeve shirt, had slurred speech and was covered in mud.  Witnesses had reported that the applicant had driven into a ditch and her car had become stuck.  A witness had assisted by towing her vehicle out of the ditch.  The applicant then drove down the street, walked to a vehicle parked in a driveway and started kicking it.  The applicant’s blood alcohol concentration when tested was 0.171%.

23. The applicant said that she had taken 3 extra Valium and had been drinking.  She said she was attacked by a woman associated with the club and pushed into the mud. 

24. In October 2014, the applicant committed another speeding offence and lost a demerit point and was fined.  In December 2014, the applicant committed the offence of disobey directional arrow on road unless permitted, and lost demerit points and was fined.

25. In cross-examination the applicant agreed that her conduct over a long period had demonstrated a pattern influenced by her emotional state at the time.  She agreed that she had residual anger issues and that in the past had turned to alcohol and Valium to self-medicate.  She said that, on occasions in the past she would go off her medication because she ‘felt better’, but came to realise that her improvement was due to the remedial effects of the medication.  She has been consistently taking her medication for some time.  She has not undertaken other strategies such as anger management or Alcoholics Anonymous because she has adopted the strategies taught to her by Ms Allen, in whom she has a great deal of confidence. 

26. Her basic strategy these days, if she ‘gets down’ is to take her son to school, return home, do the housework and then play the drums, an activity she is learning with her son.  As to alcohol, she said that she no longer drinks as she did.  She wants her son, now aged 8, to learn that drinking alcohol need not be associated with violence.  She does not drink outside the home; her only alcohol consumption is about once a fortnight when she and a neighbour will sit on her veranda and have 4-5 cans of beer. 

27. Up until recently there has been no psychologist in her town; the nearest psychologist was in another town, requiring a 6-hour round trip.  Instead she has maintained contact with Ms Allen when she has returned to her previous area.  She has consulted the new psychologist and is scheduled for ongoing appointments.  She is not seeing her for any reason associated with her citizenship application, but because of her concern about her son who has been diagnosed with learning difficulties.  She decided to see the psychologist to ‘nip it in the bud’. 

28. Otherwise, she conceded that presently she is in a ‘serene’ state, compared to her earlier days.  Since her move in early 2015 she has started a new life.  She is in a stable relationship of 4 year’s duration; her partner is a man of great composure, she said.  He is self-employed, and they do not appear to have financial concerns.  She ‘lost it’ with him only once when, early in 2013, aged in her 40s, she miscarried, and irrationally she now concedes, blamed her partner. 

29. She was asked about how her behaviour might be affected by possible unforeseen emotional triggers.  She said that now she is older, and her child is also older, she knows what she must do to keep herself safe, including taking her medication and applying coping strategies.  Ms Allen, she said, had taught her ‘boundaries’, such as knowing when to walk away, and that everyday stressors are not insurmountable.  It had taken her many months to learn the coping strategies which she now employs daily. 

30. She was asked about only disclosing in her citizenship application that she had been “done for drink driving in QLD in May 2012” when asked if she had been convicted of, or found guilty of an offence.  The applicant said that she thought she need only mention matters for which a conviction had been recorded.  She referred to her National Police Check Certificate which she had obtained for the purposes of her employment in aged care and noted that it records no disclosable court outcomes.

31. Following the hearing in this matter, the Applicant provided further submissions to the Tribunal in support of her application for review. These did not alter the Tribunal’s final decision.

    CONCLUSION

32. There is no doubt that, in her younger days, the applicant engaged in some unacceptable conduct including violent and/or disruptive behaviour.  The Respondent submitted that the applicant had a clear pattern of behaviour involving alcohol-fuelled criminal conduct over some 20 years.  However, with the exception of the drink/driving charge of 2012 those events were now over 10 years ago.  As per 10.5.2 of the ACI’s, a relevant consideration in determining good behaviour is how many offences have been committed and whether there is a pattern of criminal behaviour.  Some years ago I might have agreed that there was such a pattern, but I do not find that ‘pattern’ to have been sustained beyond 2005.

33. The Respondent also referred to the applicant’s driving record as demonstrating a persistent pattern of disregard for traffic laws, which are aimed at protecting users of the road and go to the essential safety of the community: Re Wang and Minister for Immigration and Border Protection [2014] AATA 89 at [7]. By behaving in this manner, the applicant has continued to place other road users at risk of harm, although I observe that there was no evidence of any injury being sustained by any person as a result of her driving. I accept though that behaviour of this kind is not consistent with Australian community values (Re Apire and Minister for Immigration and Border Protection [2014] AATA 193 at [15]- [16]; see also Daood and Minister for Immigration and Border Protection [2015] AATA 481). I do not regard the 2014 traffic offences as of significance.

34. The Respondent submitted that the evidence does not establish that the applicant has rehabilitated herself.  The applicant’s last significant offence was in 2012 and involved the consumption of alcohol and prescription medication prior to driving a motor vehicle.  I observe that offence is now some 4 years ago, and there was no evidence of any wrong-doing since that time, apart from the minor traffic offences of 2014.  I accept her evidence and that of Ms Allen about her learned coping strategies.  Ms Allen could not say that there was ‘no risk’ of the applicant re-offending, but in my view, such a conclusion would be unlikely to be forthcoming from any treater of any person who has diagnosed psychiatric conditions.  Ms Allen considered the applicant to be doing well in applying the coping strategies.

1. The Respondent also contended that I could not be satisfied that the applicant is remorseful for her actions.  I reject that contention.  In her written submissions to the Tribunal and on many occasions during her evidence the applicant expressed dismay at her conduct in the past, and spoke of her humiliation.  I found the applicant’s evidence to be credible and accept that she regrets her past activities.      

2. The Respondent referred to the four character reference letters the applicant had provided in support of her good character.  It was contended that limited weight should be placed on these.  In particular, her employer had made no reference to her past offences.  The applicant explained that she had provided a police check, as her employer had requested, and had not otherwise disclosed her history, and I accept that to be a legitimate reason that the offences are not referred to. 

3. A friend provided a letter in support.  The Respondent contended it was of little weight because but does not make specific reference to any of the offences.  I observe though that it confirms the applicant’s previous turbulent de facto relationship.  There was a reference to the applicant taking a more positive direction towards getting her life back on track since breaking up with her former partner, but does not assist the applicant in circumstances where the latter offences occurred at a time when the applicant was no longer in that relationship.  The letter also refers to the DUI occurring “around the time that she was being harassed and stalked by a member of the … community”.  This is consistent with the applicant’s evidence about being ostracised by the community.  

4. A letter from another friend is of limited assistance to the applicant.  

5. The Respondent contended that the applicant’s evidence does not establish stable family life.  I do not agree.  The applicant has been in a stable relationship with her current partner for 4 years.  She is a caring mother.  She is in employment and is studying to better herself.

6. In considering the various factors holistically, the starting point is that as reiterated by Deputy President Breen in Fenn:

   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...The refusal does not deprive [the applicant] of any rights he currently holds, nor does it prevent him applying for citizenship again...

7. In weighing up the various factors, I have taken into account community standards.  I consider that a person of good character may have nonetheless behaved the way the applicant did in her circumstances: a history of an abusive and dysfunctional childhood which appears to have impacted on her relationship skills and her previous reliance on alcohol as a form of self-medication.  

8. I am satisfied that since 2005 she has modified the conduct of her youth with respect to violence and that, with the exception of her drink/drive charge in 2012 and the minor traffic offences, has, since that time largely obeyed the law.  Her former conduct may not have been behaviour in accordance with Australia’s community standards, but her conduct since 2005 is, in my view, not inconsistent with community standards.  Further, I accept that the applicant’s remorse, her adoption of coping strategies, her work ethic, her demonstrated preparedness to improve herself, and her devotion to her child, are indicative that she shares Australia’s democratic beliefs and respects its rights and liberties.

9. In all the circumstances, I am satisfied that Ms Ferguson is of good character for the purposes of s 21(2)(h) of the Act.

   DECISION

10. Accordingly, the decision under review is set aside and the application is remitted to the Respondent for reconsideration with a direction that Laura Ferguson is of good character for the purposes of s 21(2)(h) of the Act.

I certify that the preceding 44 (forty -four) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

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

Associate

Dated  2 September 2016

Date(s) of hearing	29 July 2016
Applicant	In person
Solicitors for the Respondent	Sparke Helmore