Gany and Minister for Immigration and Citizenship

[2010] AATA 966

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 966

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2303

GENERAL ADMINISTRATIVE DIVISION		)
Re		TABAN WILLIAM GANY

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal G. D. Friedman, Senior Member

Date2 December 2010

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

................[signed].............................

Senior Member

CITIZENSHIP – application for Australian citizenship – refusal on character grounds – conviction for criminal offences - whether applicant of good character

Australian Citizenship Act 2007  s 21(2)

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

Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187

Re Darwich and Minister for Immigration and Citizenship [2007] AATA 2106

Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634

REASONS FOR DECISION

2 December 2010 G. D. Friedman, Senior Member

1.      Taban Gany is a citizen of Sudan who arrived in Australia on 2 January 2004 from a refugee camp in Kenya as the holder of a permanent refugee visa.  He has lived in Australia ever since.

2.      Mr Gany applied for Australian citizenship on 13 February 2010 and a delegate of the respondent refused his application on 15 May 2010 on the grounds that he did not meet the good character requirement of the Australian Citizenship Act 2007 (the Act) following criminal convictions in Australia.  Mr Gany seeks review of the decision.

LEGISLATIVE BACKGROUND

3.      Section 21 of the Act provides:

…

(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 has completed relevant defence service (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.

…

THE ISSUE

4.        There was no dispute that Mr Gany satisfies the requirements of eligibility for Australian citizenship set out in paragraphs (a)-(g) of s 21(2) of the Act.  Therefore the only issue before the Tribunal is whether Mr Gany is of good character within the meaning of s 21(2)(h) of the Act.

POLICY AND CASE LAW

5.        Ministerial directions relating to the grant of Australian citizenship are found in the Australian Citizenship Instructions (ACI) which gives guidance to decision-makers when making decisions under the Act.  The ACI, as a policy document, is not binding on the Tribunal, although the Tribunal is to give consideration to the ACI in reaching its decision unless there are compelling reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634). Chapter 10 of the ACI states:

The term “good character” is not defined in the Act. Decision makers must therefore be guided by the ordinary use of the words in making assessments. 

It is the responsibility of the applicant to show that they are of good character. If a decision maker is not satisfied that an applicant is of good character at the time the application is to be decided, the application must be refused. There is no legislative provision to defer an application made under the Act.

…

An applicant may be presumed to be of good character unless there is evidence to the contrary. In most cases, such evidence would be in the form of a serious criminal record. ... An applicant’s behaviour does not have to be faultless, but the aggregate of their qualities must be weighed against ordinary community standards of behaviour.

…

6.        The Instructions list a number of factors that decision-makers should have regard to where a person has a criminal record. They include: 

the seriousness of any offences against ordinary community standards

…

whether there are any on-going obligations in relation to the sentence received, such as a good behaviour bond

…

whether an offence was a one-off occurrence that can now be considered "out of character", or part of an ongoing pattern of behaviour which would suggest that the applicant is not of good character. Where the offence was not out of character, consider whether the applicant has been rehabilitated (see below).

whether there were any extenuating circumstances relating to the offence. For example, an offence committed under periods of temporary psychological disturbance (including involuntary effects of medication, post-natal depression, battered wife syndrome) or under duress may be given less weight than if these circumstances did not exist. The onus is on the applicant to provide evidence supporting a claim of extenuating circumstances.

the applicant’s age at the time the offence(s) were committed.

A person's behaviour as evidenced by a criminal record is relevant to the assessment of character. Appropriate weight must be given to a person's behaviour immediately prior to the making of a decision.

A reasonable amount of time will need to have passed since the applicant has been free of obligation to the court to establish a pattern of good behaviour and thus justify a conclusion that a person is now of good character.

7.        In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 the Full Federal Court of Australia considered the meaning of good character for the purposes of the migration legislation.  Davies J said (at 425):

… 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... 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.  …

Lee J 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 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.

8.        In Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 the Full Federal Court said (at 197):

The words ‘good character’ in the section should, as Lee J pointed out in Irving (at 431-432), be understood as ‘a reference to the enduring moral qualities of a person’. Conduct may make those qualities visible, but it should never be confused with them. In each case, having had regard to the conduct, the Minister or other decision-maker must still come to a further conclusion, whether or not to be satisfied that the person is of good character.

9.        In relation to the significance of the passage of time that has elapsed, since the person has been free of obligation to the Court, in Re Darwich and Minister for Immigration and Citizenship [2007] AATA 2106 the Tribunal stated at [48]:

48. It is consistent with the policy evident in the Australian Citizenship Instructions referred to above, and also with the ordinary approach to the assessment of character, to regard the quality of an applicant’s ’post conviction’ conduct as more influential than the mere assessment of the length of the period in which it has occurred.  This is especially so where, as I have suggested, there would be an element of arbitrariness involved if primary regard was had to the period since Mr Darwich was either released from prison or freed from all parole restraints.

IS MR GANY OF GOOD CHARACTER?

10.      Mr Gany acknowledged that his criminal record in Australia is:

Court	Date	Offence	Sentence
Dandenong Magistrates’ Court	29/10/2004	Learner- failure to have qualified driver	Adjourned until 29/4/2005 without conviction
Dandenong Magistrates’ Court	24/2/2005	Exceeding prescribed blood alcohol limit Learner- failure to have qualified driver Failure to display L Plates	Licence cancelled Fined Disqualified from obtaining licence for 18 months
Dandenong Magistrates’ Court	30/8/2005	Exceeding prescribed blood alcohol limit	Adjourned until 30/8/2006 without conviction Licence cancelled Disqualified from obtaining licence for three years
Supreme Court of Victoria	7/7/2006	Negligently cause serious injury	2 years, 6 months
Negligently cause serious injury	2 years, 6 months 2 years, 3 months of sentence concurrent
Negligently cause serious injury, Reckless conduct endangering life	2 years on each count. 1 year, 9 months of each count concurrent
Exceeding prescribed blood alcohol limit	Disqualified from obtaining licence for 3 years

11.      In a statutory declaration dated 21 October 2010, Mr Gany described his background as a Christian in the Nuer tribe in Southern Sudan and said that there were constant attacks by Government militia from Northern Sudan.  Many women were kidnapped for slavery and men were forced into fighting for the militia.  He said that he commenced to drink heavily after his father was tortured and murdered.  In 1995 he escaped from Sudan and went to a refugee camp in Kenya before being granted a refugee visa to come to Australia.  He emphasised that conditions in the camp were extremely difficult and his main objective was to stay alive.

12.      Mr Gany told the Tribunal that his experiences in Sudan and Kenya involved a lack of appreciation of rules and integration into a society.  On arrival in Australia he found employment even though he spoke no English, and was determined to provide a better life for his wife and two young children.  He said that he continued to drink alcohol and did not pay attention to the rules and laws of Australia, leading to a breakdown of his marriage for a time.  He admitted to driving while intoxicated and now realises the danger of drink driving.

13.      He stated that in respect of his most recent convictions he was sentenced in the County Court of Victoria on 10 February 2006 to an effective term of three years’ imprisonment, wholly suspended, after pleading guilty to charges arising from an incident that occurred on 19 May 2005.  He had been consuming alcohol with friends when he received a telephone call from his wife informing him that his child was ill.  He attempted to drive to Dandenong railway station, but lost control at a roundabout and crashed through the fence at Dandenong West Primary school.  Four children were seriously injured and a fifth received minor cuts and bruises.  His blood alcohol reading was 0.175 per cent.

14.      Mr Gany explained that the Director of Public prosecutions appealed against the sentence on the grounds that suspension of the sentences had resulted in a sentence that was manifestly inadequate.  On 7 July 2006 the Court of Appeal of the Supreme Court of Victoria upheld the appeal and sentenced Mr Gany to an effective term of 3 years and 6 months’ imprisonment, with a minimum term of 1 year and 9 months before becoming eligible for parole.  He was released on 18 March 2008 and completed the term of his parole on 17 December 2009.

15.      In relation to his application for citizenship Mr Gany said that he had co-operated fully during the brief interview with the officer of the Department of Immigration and Citizenship (DIAC), and stated that he had ticked the appropriate box that asked whether he had been convicted of a criminal offence.  He said that he did not understand all of the written questions but had made full disclosure of his criminal convictions when requested to do so.  He said that he did not believe he needed to seek the services of an interpreter and did not hide any aspect of his offending behaviour.  Under cross-examination he agreed that he had answered no to the question whether he had been confined in a prison, but had told the officer about his gaol term and she had written it on the form.

16.      In an affidavit dated 12 November 2010 Ms K Carroll, an officer of DIAC and a delegate of the respondent, stated that she interviewed Mr Gany on 12 April 2010 and that the interview lasted about ten minutes.  She said that she formed the view that he did not require the services of an interpreter.  Ms Carroll stated that she asked for additional information and his response, including a statutory declaration dated 26 April 2010, referred to being gaoled for drunkenness while driving a car and did not mention a conviction for negligently causing serious injury.  She concluded that Mr Gany had not fully disclosed the length of his offending behaviour and the nature of his offences.

17.      Under cross-examination Ms Carroll agreed that she did not ask Mr Gany whether he understood fully the questions that were being asked of him.  She also agreed that on a typical day she might conduct 10-15 such interviews.

18.      Mr Gany stated that that he takes full responsibility for his actions regarding the events of 19 May 2005 and remains horrified that he injured and scared innocent children.  He said that he pleaded guilty to the charges at the earliest opportunity and realised that he had to turn his life around.  He stated that has not consumed alcohol since then.  He told the Tribunal that he completed various programs in gaol to address his behaviour and his offending.  After his release on 18 March 2008 he became involved with the Nuer and wider Sudanese community.  He encourages young people not to make the same mistakes that he did, particularly involving the consumption of alcohol.  Mr Gany stated that he has worked hard to be a person of good character and a model citizen.  He said that on 14 August 2008 he commenced full-time employment with a plastics company, and remains in that employment.

19.      Mr Gany emphasised that he commenced alcohol counselling while incarcerated, and following his release, he was referred to South East Alcohol and Drug Services for assessment and counselling as a requirement of his parole.  He said that he has undertaken alcohol counselling with Ms S Turnbull and will continue to attend for as long as is necessary and as long as she will see him, so that he can continue to contribute positively to his family, his community and his country.

20.      Mr Gany said that more than five years have elapsed since his offending, and he has worked hard to change his life and become a good person.  He has not committed further offences and has regained his driving licence.  He maintained that he wants to be a positive role model for his five children.  He stated that he believes he now meets the requirements for the conferral of Australian citizenship, and wants to contribute further as an Australian citizen.     

21.      Under cross-examination Mr Gany agreed that he was not sure of the amount of alcohol that he had been drinking when apprehended on 19 May 2005, as he was intoxicated at the time. 

22.      In an affidavit dated 22 October 2010 Ms S Turnbull, psychologist and drug and alcohol counsellor, stated that Mr Gany was referred to her for assessment and counselling as a requirement of his parole, and commenced counselling on 19 March 2008.  She said that Mr Gany attended further sessions on 2 April 2008, 23 April 2008 and 21 May 2008, and during counselling he presented with strong motivation and a genuine commitment to abstain from alcohol consumption.  He demonstrated a willingness to learn and explore issues regarding his traumatic past and his alcohol use.  He had expressed remorse for his actions and showed a commitment to become involved in his community, particularly the engagement of young people, as well as a sense of responsibility for his family and his role in society.

23.      Ms Turnbull said that she met with Mr Gany on 14 July 2010 at his request in relation to his application for Australian citizenship, and he had reported meeting the goals he had described in 2008, with a continued determination and motivation to build on those goals.  Ms Turnbull said that she met with him again on 25 August 2010, 6 September 2010 and 14 September 2010, during which he confirmed that he has abstained from alcohol consumption and he reiterated his desire to contribute positively to the community.  She concluded that he has demonstrated strong motivation and the ability to accept responsibility for his family and his role in the community.

24.      In an affidavit dated 21 October 2010 Mr A Bruno, Manager, 3B Manufacturing, stated that the company first employed Mr Gany on 14 August 2008.  He said that Mr Gany is a valued employee and described him as reliable, hard-working and conscientious.  Mr Bruno said that Mr Gany has never presented as alcohol-affected and is a good role model for other workers in the factory.

25.      In an affidavit dated 21 October 2010 Mr D Tut Kuiy, community development worker, stated that he is the President of the Nuer community in Victoria and has known Mr Gany since Mr Gany’s arrival in Australia.  Mr Kuiy stated that initially Mr Gany did not speak English and was not equipped for employment, was consuming alcohol to excess and did not participate in community activities.  Mr Kuiy said that he was shocked by the events of 19 May 2005 but offered his support to Mr Gany, who was remorseful for his conduct and vowed to cease drinking alcohol.

26.      Mr Kuiy said that since returning to the Nuer community in March 2008 Mr Gany has been elected as a youth leader and takes an active role in guiding young people to gain educational qualifications and become responsible members of the community.  He noted that Mr Gany has shown good qualities as a husband and father and has made a real effort to learn to read and write English.  Mr Kuiy concluded that since May 2005 Mr Gany has changed and is now a valuable member of the Nuer and wider Australian community.

27.      In a report dated 3 December 2005, for Mr Gany’s solicitors involved in his appearance before the County Court of Victoria on 10 February 2006, Mr P Newton, forensic and counselling psychologist, stated that Mr Gany was suffering from alcohol abuse arising from trauma experienced in Sudan from early childhood before he fled to Kenya in 1995.  Mr Newton also diagnosed adjustment disorder with mixed anxiety and depressed mood, arising from his offending and compounded by past experience of traumatisation and dislocation.  Mr Newton recommended further counselling as a matter of urgency to prevent deterioration of Mr Gany’s condition and to address ongoing emotional issues.    

CONSIDERATION

28.      The Tribunal finds that the first offences were committed shortly after Mr Gany’s arrival in Australia and that all offences involved drinking and/or driving and occurred within a relatively brief period until May 2005.  This represents an established pattern of criminal behaviour, and the offences were of a serious nature.

29.      Mr Gany has taken steps to improve his English language skills since arriving in Australia.  However after observing Mr Gany at the hearing the Tribunal considers that his command of English is still relatively rudimentary.  He presents as a quiet and shy person.  The application form for Australian citizenship uses language that must have been difficult for him to understand, and his attempt to complete the process without an interpreter was somewhat ambitious.  However, the Tribunal concludes that he made a legitimate attempt to complete the documentation and to answer questions in an honest manner to the best of his ability.  Therefore, the Tribunal finds that he fully disclosed to the respondent the length of his offending behaviour and the nature of his offences.

30.      In relation to his behaviour since committing the most serious offences on 19 May 2005, the Tribunal acknowledges that Mr Gany has made significant progress in addressing the issues that led to him committing the offences.  The Tribunal accepts that he has ceased consuming alcohol, has maintained stable employment since August 2008 and has acted as a mentor to young members of the Nuer and wider Sudanese community.  He has expressed remorse for his criminal actions and has accepted responsibility for his actions and appears to have gained some insight into the reasons for his offending.  He commenced counselling for his alcohol problems in March 2008 as a condition of his parole, and Ms Turnbull has referred to his strong motivation and a commitment to remain abstinent from alcohol use.   

31.      However there is no evidence before the Tribunal to suggest that alcohol counselling continued beyond the four sessions conducted by Ms Turnbull between March and April 2008, although Mr Gany met with Ms Turnbull several times in 2010 at his request for the purposes of this application for review.  In view of Mr Gany’s longstanding and severe alcohol problems the Tribunal is concerned that there is no indication from Ms Turnbull’s affidavit that the meetings in 2010 constituted counselling sessions, and no explanation for the apparent lack of contact with Mr Gany between 2008 and 2010, or whether Ms Turnbull believed that further counselling was necessary.  As Ms Turnbull was not available to give oral evidence or be cross-examined on these issues the Tribunal gives lesser weight to her affidavit than would otherwise be the case.

32.      The Tribunal takes into account the diagnosis in December 2005 of alcohol abuse and adjustment disorder with mixed anxiety and depressed mood by Mr Newton and his recommendations for counselling to address these matters, particularly concerning severe trauma and dislocation.  Although there is no formal requirement for these recommendations to be implemented, the Tribunal is concerned that there is no material before it to suggest that such counselling has been undertaken, or an acknowledgment that the counselling is desirable or necessary, particularly since the end of the parole period on 17 December 2009.

33.      The Australian community expects a reasonable period of time to elapse after the completion of obligations to the Court before a determination that a person is of good character, as provided for in the ACI.  Despite the progress that Mr Gany has made since May 2005, as already outlined, regarding his abstinence from drinking and his commendable role within his community, the Tribunal considers in all the circumstances that a period of less than twelve months since the end of obligations to the Court is insufficient to demonstrate the necessary change in his character.  In addition, the issues that led to Mr Gany’s offending, as articulated by Mr Newton and Ms Turnbull, are deep-seated and involve significant trauma for which the need for significant counselling and rehabilitation was identified.

34.      Having regard to the whole of the evidence before it, the Tribunal concludes that there is insufficient objective evidence from relevant professionals that Mr Gany has rehabilitated himself to such an extent that he can reasonably be regarded as being of good character.  Accordingly, the Tribunal finds that Mr Gany is not of good character within the meaning of s 21(2)(h) of the Act.

DECISION

35.      The Tribunal affirms the decision under review.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member.

.............................[signed]................................

Kate Conners   Associate

Date of Hearing:  29 November 2010
Date of Decision:  2 December 2010
Counsel for the applicant:   Mr T Cordiner (pro bono)
Solicitor for the applicant:   Clothier Anderson & Associates
Advocate for the respondent:                  Mr D Brown
Solicitor for the Respondent:                  Australian Government Solicitor